author:
BARFIELD, Judge.
      MILLS, Judge,

text:
    Timothy Ted COOPER, Appellant, v. STATE of Florida, Appellee.
    No. AR-462.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Timothy Ted Cooper, pro se.
    No appearance for appellee.
    Before ERVIN, C.J., and MILLS, BOOTH, SMITH, SHIVERS, WENT-WORTH, JOANOS, THOMPSON, WIG-GINTON, NIMMONS, ZEHMER and BAR-FIELD, JJ.
   OPINION

BARFIELD, Judge.

Timothy Ted Cooper appeals his convictions for two counts of attempted second degree murder. Eight of the ten issues raised by Cooper are without merit. The remaining two issues concern the imposition of consecutive mandatory three year minimum sentences, which we reverse, and the reclassification of attempted second degree murder with a firearm from a second degree felony to a first degree felony, which we affirm.

In this case the imposition of two consecutive three year minimum sentences under section 775.087, Florida Statutes (1983) is clearly precluded by Palmer v. State, 438 So.2d 1 (Fla. 1983). The sentence of the trial court is reversed and the minimum terms of three years imprisonment as to each count shall run concurrently.

The defendant was charged with two counts of attempted first degree murder with a firearm, each a life felony by reclassification under section 775.087(l)(a), Florida Statutes (1983). The defendant was convicted under each count of the lesser included offense of attempted second degree murder, a first degree felony by reclassification under section 775.087(l)(b), Florida Statutes (1983). We affirm the trial court’s holding that the offenses are first degree felonies and recede from this court’s holdings in Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982) and Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984).

All necessarily included offenses and lesser included offenses are “charged” within the meaning of section 775.087. This is a concept of fundamental fairness in the criminal accusatorial process that is so well-established that the necessity for citation of authority has long ago been abandoned. No person shall be convicted of an offense with which he has not been charged. Robinson v. State, 69 Fla. 521, 68 So. 649 (1915). Therefore, lesser included offenses must be “charged” or convictions for such offenses would be invalid. Likewise, the concept is supported by the rule that no person, once acquitted of an offense, may be tried on a subsequent charge of a lesser included offense stemming from the offense originally charged. Hand v. State, 199 So.2d 100 (Fla.1967). Such concepts are the predicate for instructions by the trial court on lesser included offenses. Brown v. State, 206 So.2d 377 (Fla.1968).

We are aware of the decisions in Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983) and Hayden v. State, 450 So.2d 1242 (Fla. 3d DCA 1984), the results of which are consistent with this opinion, but we are critical of the commingling of the terms “reclassification” and “enhancement”. It may be of some benefit for the court to distinguish between “enhancement” of penalty laws and “reclassification” of offense laws. Admittedly, in some instances such a distinction may be without a difference in its practical effect, but the legislature has chosen to make a distinction. Enhancement is commonly associated with the province of the judge in sentencing, as in the case of habitual offenders, section 775.084, and the wearing of a mask, section 775.-0845. Reclassification speaks to the degree of the crime charged, and in the metaphysical legislative application, appears to attach at the time the indictment or information is filed and not at the time a conviction is obtained. Section 775.081 “classifies” felonies. Section 775.087(1) “reclassifies” all felonies with specified exceptions when certain conditions attend to the commission of the crimes.

This court considered the decision in Miller v. State, supra, in its opinion in Smith v. State, supra, and we continue to recognize the importance of the issue which led to prior conflict with our colleagues and our present reversal of our earlier rulings. We certify to the Florida Supreme Court the following question as one of great public importance pursuant to Fla.App.R. 9.030(a)(2)(A)(v):

Do the reclassification provisions of Section 775.087(1), Florida Statutes, apply where the defendant is not convicted of the offense expressly charged in the information or indictment but, instead, is convicted of a lesser included offense?

REVERSED in part and AFFIRMED in part.

BOOTH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON and NIMMONS, JJ., concur.

MILLS, J., specially concurs with opinion.

ERVIN, SMITH and ZEHMER, JJ., concur with Mills’ opinion.

MILLS, Judge,

concurring specially:

Although I agree with the results reached in Cooper, I do not agree that en banc consideration was necessary. In my judgment, the en banc consideration of this case was unwarranted and was an unnecessary waste of judicial time.

Neither party sought review of this Court’s decision in the Carroll case. The defendant sought review of the Fourth District Court of Appeal’s decision in the Miller case and the Supreme Court will hear oral argument on 7 September. This court adhered to Carroll in its Smith decision but certified conflict with Miller and certified the following question as one of great public importance:

DO THE RECLASSIFICATION PROVISIONS OF SECTION 775.087(1), FLORIDA STATUTES, APPLY WHERE THE DEFENDANT IS NOT CONVICTED OF THE OFFENSE EXPRESSLY CHARGED IN THE INFORMATION OR INDICTMENT BUT,. INSTEAD, IS CONVICTED OF A LESSER INCLUDED OFFENSE?

The Supreme Court accepted jurisdiction.

This Court took proper action in the Smith case and the Supreme Court now has jurisdiction to resolve the conflict between Carroll and Smith and Miller. It is the appropriate jurisdiction to resolve this conflict.

It was a waste of judicial time for this Court to en banc Cooper when it had already taken appropriate action in Smith.

The ultimate decision in Carroll was based on the defendant’s motion for rehearing. The State did not favor the Court with a response to the motion for rehearing. Under the circumstances, the result reached in Carroll was a reasonable construction of Section 775.087, and, obviously, the State agreed with this construction because it did not seek review of Carroll by the Supreme Court.

Having had the benefit of arguments by Cooper, the State and Judges of this Court, I now agree that the Cooper construction of Section 775.087 is more logical but because the Supreme Court already has jurisdiction to resolve the conflict between Carroll and Smith and Miller, it was an unwarranted and unnecessary act for this Court to en banc Cooper. We should be utilizing our time to resolve other cases of merit which require expeditious disposition.


source: Caselaw Access Project

author: NIMMONS, Judge.

license: Public Domain

text:
    CARPENTERS R.V. SERVICE and South Carolina Insurance Company, Appellants, v. Albert E. ECKERT, Appellee.
    No. AX-40.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 2, 1984.

      James N. McConnaughhay & Gordon D. Cherr of Karl, McConnaughhay, Roland & Maida, Tallahassee, for appellants.
    James F. McKenzie, Pensacola, for appel-lee.
   NIMMONS, Judge.

The employer and carrier (E/C) appeal from an order awarding wage-loss benefits for the period of May, 1983, through September, 1983. His earnings are derived from his commissions on real estate sales. We affirm.

On August 4, 1979, the claimant, now 51 years old, injured his left shoulder while working as a recreational vehicle maintenance mechanic for the employer, Carpenters R.V. Service. The injury involved a capsular tear over the front part of his left shoulder and resulted in a permanent impairment. The claimant, who is left-handed, was unable to continue in that kind of work or in. other work in which he had previously been engaged including plumbing, heating and construction. As the deputy commissioner found in his previous un-appealed order entered in 1980 awarding wage loss benefits, claimant’s treating physician recommended a change in claimant’s vocation because of the problems encountered in using his left arm. Accordingly, the claimant enrolled in a real estate course and passed his real estate license examination. Thereafter, he became employed with a real estate firm and commenced selling real estate on a commission basis.

At the 1980 wage-loss hearing, the E/C contended that the claimant did not make an adequate work search for jobs which he could do without resorting to vocational training to become a real estate salesman. The E/C brought out at the hearing that the claimant had not accepted the employer’s offer to try selling recreational vehicles on a straight commission basis. In the 1980 order, the deputy rejected the E/C’s contentions, found that the vocational training undertaken by the claimant was appropriate and ordered the E/C to reimburse the claimant the expenses incurred in connection with such training and to pay the claimant wage loss for the period of training and for a period of time after the claimant commenced selling real estate. As previously noted, that order was not appealed.

Thereafter, the E/C voluntarily paid wage-loss benefits for those months in which the claimant’s earnings from his sales justified such benefits. As the claimant has gained further knowledge and experience in the real estate business, his earnings have steadily increased although they, of course, have varied from month to month. For example, in January 1983, he earned $1,200 in commissions, and the E/C did not have to pay the claimant any benefits. In February, he earned $600 and the E/C had to pay wage loss. In March, the claimant’s earnings were $2,745 and so no benefits were paid. In April, the claimant earned no commissions and so full wage-loss benefits were paid.

In June 1983, the E/C apparently decided that they were not going to pay any more wage-loss benefits because, as they contended, the amounts claimed to be due were caused by the nature of his business as a real estate salesman and not due to his injury. The E/C also asserted at hearing that, because of the fluctuation in claimant’s earnings, wage loss should not be calculated on a monthly basis as contemplated by the statute. Instead, the E/C asserted, his earnings for the calendar year should be totalled and compared with his pre-injury annual income.

Our recent case of National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984), which also involved a wage-loss claim by a claimant engaged in real estate sales, requires rejection of the E/C’s contentions unless the 1983 amendment to § 440.15(3)(b)2 indicates that a different result should be reached. The portion of the statute added by Chapter 83-305, Laws of Florida, is emphasized in the following excerpt from Section 440.15(3)(b)2:

Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury. It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident, is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment.

This court’s interpretation of the amended section in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), is relevant. There, the employer and carrier argued that the amendment precludes an award of wage-loss benefits unless a claimant establishes that economic conditions do not affect his employability. We rejected that construction of the statute as amended and held:

We construe the amendment, instead, as precluding an award of wage loss benefits when predicated solely on economic considerations unrelated to a claimant’s physical limitations by ordinary proximate cause standards. We further read the amendment as emphasizing the requirement that claimant shall present evidence indicating that the compensable physical limitation is a contributing causative factor in the wage loss claimed. Claimant’s initial burden under the amended language, therefore, is to present evidence, by job search when appropriate, which reasonably permits a conclusion that the compensable physical limitation was an element in the causal chain resulting in or contributing to the wage loss.

Id. at 576.

We hold that there was competent substantial evidence in the instant case indicating that claimant’s compensable physical limitation was a contributing causative factor in the wage loss claimed. The claimant’s present employment in the real estate business, instead of the kind of regular income job he had with the employer, is attributable to his disability. It was established by the previous 1980 unappealed order that the claimant was, by reason of his permanent impairment, unable to continue performing the kind of work for which he had training and experience, that it was, necessary for him to submit to education and training in another field of endeavor and that real estate sales was a reasonable avenue for the claimant to pursue. And the 1980 order, therefore, required the E/C to reimburse the claimant for his expenses in obtaining his real estate license. Further, the testimony clearly shows that the claimant has conscientiously and enthusiastically pursued his new vocation over the past several years and his earnings therefrom have steadily increased as a consequence of his efforts.

The E/C does not contend that the claimant failed to put forth reasonable diligence in his efforts to sell real estate during the months in question when his earnings were meager. In fact, the evidence is undisputed that the claimant devoted full time and considerable effort in connection with his real estate sales work. It has not been shown that claimant limited his income or declined appropriate employment that was more lucrative.

Finally, there is no suggestion by the E/C — and no evidence to support the same — that the claimant, or anyone on his behalf, “juggled” his commissions so as to artificially deflate his monthly earnings in order to take advantage of the statutory requirement that wage-loss claims be considered strictly on a monthly basis.

We conclude that competent substantial evidence supports the finding that the claimant’s compensable physical limitation was a contributing causative factor in the wage loss awarded.

AFFIRMED.

ERVIN, C.J., and JOANOS, J., concur.

      . The claimant’s average monthly wage when he was injured in 1979 was $1,335.79.

      . In National Distillers, the employer and carrier defended the wage-loss claim in part on the ground that the claimant’s reduction in earnings for December and January was not caused by his accident but was the result of the "nature of the real estate business," and contended that computation of wage loss on a strictly month-by-month basis, without consideration of a claimant’s earnings over a longer period of time, may result in an inaccurate picture of claimant’s “earning capacity.” We held:
      "While earning capacity was the critical issue in pre-1979 proceedings for the purpose of determining entitlement to permanent benefits greater than those provided for permanent impairment alone, the current statutes require computation of actual compensable
      wage loss each month, absent which a permanently partially disabled claimant will receive no benefits for that month regardless of the extent of physical impairment. Since the explicit terms of the statute require entitlement to be determined monthly, any proposals for alternative methods of computation to cover situations involving erratic income are more properly to be addressed to the legislature.”

        Id. at 355, 356.

      . We noted at footnote 1 of National Distillers:

      "Appellants have not raised, and we do not address, any issue regarding the 1983 amendment to § 440.15(3)(b)2, enacted after the final hearing below.”


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

text:
    Leon E. SUPAL, etc., et al., Appellants, v. Lorraine MILLER, et al., Appellees.
    No. 83-892.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.

      H.B. Giedzinski, Ocala, for appellants.
    Meredith S. Power, Belleview, for appel-lees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final order enjoining Leon and Cynthia Supal from closing a road on their property. The road runs along the southern perimeter of the Supals’ property in Marion County, from Highway 301 on the east to Summerfield Road, a county road, on the west. Appel-lees own lots along the south side of the road from Highway 301 to approximately the midway point and use the road to get to Highway 301 and Summerfield Road.

Appellees sued to prevent the Supals from closing the road claiming a prescriptive easement. Prior to trial it was agreed that appellees were not seeking a public easement but rather a private prescriptive easement. The court found that the road had been in continuous use for more than twenty years and enjoined the Supals’ from closing it. The court also ordered that the road be kept open to the public. We reverse.

In Downing v. Bird, 100 So.2d 57 (Fla.1950), the supreme court held that to establish a prescriptive easement, a claimant must allege and prove by clear and positive proof, the following elements: 1) actual, continuous, uninterrupted use by the claimant for the full prescriptive period which is twenty years; 2) that the use be adverse under claim of right and either be with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner; 3) that such use be inconsistent with the owner’s use and enjoyment of his land and must not be a permissive use; and 4) that such use be related to a certain limited and defined area of land, or if for a right-of-way, the use be of a definite route with a reasonably certain line, width and termini. See also Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. 5th DCA 1983); Guerard v. Roper, 385 So.2d 718 (Fla. 5th DCA 1980).

A claimant for a prescriptive easement must have continuously used the easement for the full prescriptive period. See Downing v. Bird. Florida cases have not extensively discussed the application of tacking principles to prescriptive easements, but they clearly indicate tacking can be used to establish a prescriptive easement. For instance, in J.C. Vereen & Sons, Inc. v. Houser, 123 Fla. 641, 167 So. 45, 48 (1936), the supreme court found no prescriptive easement where the claimant could not show that he or “his predecessors in title” exercised use of the plaintiff’s property for the prescribed period. In Guerard v. Roper, this court, while finding that a prescriptive easement had not been established because of insufficient evidence of adverse use, did find as an initial matter that the claimant “and his predecessors in title have used the roadway” for over twenty years, thus satisfying the continuing use requirement. 385 So.2d at 720. In Orange Blossom Hills, Inc. v. Kearsley, 299 So.2d 75, 76 (Fla. 1st DCA 1974), the First District upheld the finding of a prescriptive easement where the evidence showed that “the [claimants] and their predecessors in title, as well as the public in general, had created a prescriptive easement as a means of egress and ingress over the property of the defendants for a period in excess of sixty years.”

In this case, appellees testified they owned their respective lots since the early 1970’s and used the roadway continuously since then. There was no evidence, however, as to who their predecessors in title were and whether such predecessors made use of the roadway in question to reach their property. Appellees basically relied on evidence of use of the roadway by the public for over fifty years to establish the twenty-year continuous use requirement.

By this testimony that the road had been used by members of the public for the prescriptive period, appellees did not establish that they and their predecessors in title used the road for the required period. While it is true that in acquisition of a prescriptive easement, the use need not be exclusive and may be in common with the owner or the public, Hunt Land Holding Co. v. Schramm, 121 So.2d 697 (Fla. 2d DCA 1960), the party claiming an easement by prescription must show that he has acquired it by his own use (or that of his predecessors in title) independent of others and he cannot make his right depend on the enjoyment of a similar right by others. 2 G. Thompson, Commentaries on The Modern Law of Real Property, § 343. To allow appellees to rely on use by members of the public to establish a private prescriptive easement would reduce the requirement of a twenty-year prescriptive period to a mockery.

This is not to say that no easement could have been found here. The proper course of action when confronted with long, continuous and adverse use by the general public is to seek a public prescriptive easement. Florida cases clearly establish that the public, like private parties, can acquire an easement by prescription. See, e.g., City of Daytona Beach v. Tona Rama, Inc., 294 So.2d 73 (Fla.1974); Downing v. Bird, 100 So.2d at 64; Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925). However, here appellees stipulated that they were not trying to establish a public prescriptive easement. In addition, it is generally a legally organized political entity, such as a city or county, which represents the general public in establishment of a public prescriptive easement. 2 Fla.Jur.2d Adverse Possession § 54. See, e.g., Pinellas County v. Roach, 160 Fla. 713, 36 So.2d 364 (1948); Genet v. City of Hollywood, 400 So.2d 787 (Fla. 4th DCA 1981); Lake County v. Gatch, 168 So.2d 81 (Fla. 2d DCA 1964); Sumter County v. Brown, 123 So.2d 263 (Fla. 2d DCA 1960), cert. denied, 127 So.2d 679 (Fla.1961); Berger v. City of Coral Gables, 101 So.2d 396 (Fla. 3d DCA 1958).

REVERSED.

COBB, C.J., and DAUKSCH, J., concur.

      . Appellees’ reliance on Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925) as supporting a finding of a private prescriptive easement in their behalf is misplaced. In Zetrouer, the claimant alleged that he and "his predecessor in title have used the road” for more than thirty years. The supreme court, in affirming the granting of an injunction to prevent obstruction of the road, declared:
      The affidavits amply support the claim of continuous, uninterrupted use of the road by complainant and the public for more than 35 years. Where the common law obtains, twenty years continuous and uninterrupted use had always created a prescriptive right as well in the public as private individuals.
      103 So. at 627.
      Unlike in Zetrouer, here appellees did not show continuous use by themselves and their predecessors in title for at least twenty years.

      . For purposes of clarification, we do not hold that adverse use was shown here. Rather, because appellees failed to establish the element of continuous use, we do not address the remaining elements necessary for establishment of a prescriptive easement.


author: PER CURIAM.

text:
    Arthur REDFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-937.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The credibility of a defendant and the reasonableness of his explanation for his possession of recently stolen property (§ 812.022(2), Fla.Stat.) is a question of fact for the jury. Leslie v. State, 35 Fla. 171, 17 So. 555 (1895); Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981). See also Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980).

AFFIRMED.

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


text:
    SANLANDO SPRINGS ANIMAL HOSPITAL, INC., et al., Appellants/Cross Appellees, v. Thomas W. DOUGLASS, etc., et al., Appellees/Cross Appellants.
    No. 83-1290.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    Michael J. Appleton of Graham, Marlowe & Appleton, Winter Park, for appellants/cross appellees.
    Kenneth M. Beane, Casselberry, for ap-pellees/ cross appellants.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a final judgment awarding damages and costs and requiring them to remove improvements encroaching upon property which the court found was owned by appellees. The facts of this case are unusual for a boundary dispute because the parties who originally established the line do not dispute its location.

The record reflects that in 1971, appellants purchased land from Albert Harris on which to build a veterinary hospital. To satisfy set-back requirements, they needed a slightly larger piece of land. Harris agreed to sell them what they required. Appellants ordered a survey and Harris agreed to relocate an existing fence along the new boundary. In relocating the fence, Harris apparently did not place it on the line shown in the survey resulting in an encroachment of some 110 square feet.

Appellants built their hospital and paved their land for parking. On the rear of their property, they built a concrete block building part of which extended onto Harris’ land as did the paved parking lot. When the litigation commenced, this condition had existed for eight years. In all that time, Harris never claimed a right to any portion of the land used by appellants.

In 1978, appellees became interested in purchasing Harris’ land. Harris showed them the property and told them the fence was located on the line between his land and the appellants’ property. Since Harris, was unaware of any encroachment, the 110 square feet occupied by the appellants was conveyed to the appellees as part of the lands described in the deed.

After appellees took title, they obtained a survey and learned of the encroachment. They then demanded that appellants vacate. Appellants refused, suit was filed, and the trial court ordered the removal of all encroachments and awarded damages. The basis for the court’s decision was not recited in the judgment. Appellants appealed this judgment and appellees cross-appealed the court’s denial of damages for a sign. Because of our disposition of the appeal, we need not reach the issue on cross-appeal.

While pleaded, appellants inexplicably abandoned their claim under adverse possession. They did not argue this theory at the trial level nor has it been raised on appeal. Appellants argue only that a boundary was established either by agreement or by acquiescence. Appellees argue that the boundary was not established under either theory since both doctrines require some sort of “dispute” between the parties agreeing or acquiesing to the boundary. See Shaw v. Williams, 50 So.2d 125 (Fla.1950); Seddon v. Edmondson, 411 So.2d 995 (Fla. 5th DCA 1982).

The requirement of a dispute does not mean that the parties have to be hostile to each another. The dispute can simply be an uncertainty as to the true location of the line. As stated in Brooks v. Fletcher, 393 So.2d 630, 631 (Fla. 4th DCA 1981), the elements necessary to prove a boundary by agreement are as follows:

(1) an uncertainty or dispute as to the boundary line;
(2) an agreement that a certain line will be treated as the true boundary line;
(3) the subsequent occupation of both properties according to such line as the true boundary, (emphasis added)

Here, appellants paid Harris to locate the fence on the boundary line as shown on the survey. Through the negligence of Harris, the fence was not placed on the correct line, although Harris stated that he located the fence where the survey “stobs” were and he personally checked their position against the dimensions shown on the survey and they checked out “to the inch.” The uncertainty arose because neither Harris nor appellants knew the exact location of the line on the ground although it is clear they intended the fence as relocated to be along the line shown on the survey. The agreement between appellants and Harris was that Harris would put the fence where it was supposed to be. There is no conflict that both appellants and Harris thought the line was the true line and their actions in the following years corroborated this.

Appellees, claiming under Harris, can have no better claim than Harris had because they were shown the fence and informed that it was the boundary. Appel-lees cannot, in good faith, claim lack of notice. Appellees received all the land that was shown to them and all the land that Harris intended to sell them.

We reverse and remand for entry of judgment for appellants.

REVERSED and REMANDED.

CORB, C.J., and ORFINGER, J., concur.

      . See Seddon v. Harpster, 403 So.2d 409 (Fla.1981).


text:
    In the Interest of L.R.R. and M.A.R., Children. Pamela RUSSELL, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 83-1640.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    David G. Conn, St. Augustine, for appellant.
    Jim Smith, Atty. Gen., and James W. Sloan, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Pamela Russell, the natural mother, appeals from an order terminating parental rights and committing her two children to the Department of Health and Rehabilitative Services for adoption. She contends the court erred in terminating parental rights because HRS made no investigation into her current living arrangement and her competency to be a parent. She also contends that the court was required to consider a predisposition report under section 39.408(2), Florida Statutes.

Russell is twenty-one years old and illiterate. In April, 1980, the children, then one and one-half and two and one-half years of age, respectively, were found to be dependent and were committed to the custody of HRS because Russell was unable to care for them as she had been committed as a juvenile offender. Since May of 1980, the children have been in foster care.

In entering into a performance agreement with HRS in December, 1980, Russell indicated a desire to have her children returned to her within six months. She agreed to attend counseling, obtain employment or attend vocational training, and acquire adequate housing.

In August, 1983, HRS filed a petition for permanent commitment charging that Russell failed to comply with the performance agreement and had neglected the children. At the hearing below, the HRS case worker testified to Russell’s failure to meet the terms of the performance agreement and further testified that Russell failed to visit the children between December, 1981 and August, 1983, even though under the terms of the agreement she was to visit with them once a month. The case worker opined that in light of Russell’s lack of interest, the best interests of the children, now ages five and six, would be served by permanent commitment. The case worker admitted on cross-examination, however, that she did not know who Russell was currently living with and had not visited Russell in a home environment for approximately nine months.

Russell called three witnesses, her grandmother, sister and father. They testified that Russell was currently living in a two-bedroom trailer on the grandmother’s property in anticipation of the return of the children and that she had a positive change in attitude and lifestyle over the past few months. They added that they would be willing to assist in caring for the children though none of them had close contact with the children while they had been with HRS.

The trial court found that Russell, while resisting the petition for permanent commitment over the past few months, had previously shown no inclination or desire to obtain custody of her children. The court found that Russell showed no interest in the children for most of the three years they were under HRS custody and ignored the terms of the performance agreement. The court concluded that Russell’s conduct amounted to abandonment, see sections 39.-01(1), 39.41(l)(f)l, Florida Statutes (1983), and that the best interests and welfare of the children would be served by permanent commitment.

Russell argues that clear and convincing evidence to support termination of parental rights was not present here because of the absence of a current HRS investigation. She relies on Carlson v. State, Department of HRS, 378 So.2d 868 (Fla. 2d DCA 1979), wherein the Second District reversed an order terminating parental rights because HRS had not evaluated the living conditions of the parents from the time of the initiation of temporary custody by HRS over the children until HRS petitioned to sever parental rights, a period of approximately ten months. The court stated:

Since the evidence before the trial court did not include an evaluation of the current family unit of Sharon and Roland Carlson and their present competency as parents, we do not believe that it was sufficiently clear and convincing to require termination of their parental rights.

378 So.2d at 870.

In the recent case of In the Interest of W.D.N., 443 So.2d 493 (Fla. 2d DCA 1984), the Second District reviewed an order terminating parental rights based on a finding of child abuse. The mother argued on appeal that under Carlson, error had been committed since an in-home investigation had not been conducted regarding her current living situation and ability to provide a proper and fit home. The court rejected this claim, finding that the mother was not prejudiced by the failure of HRS to make a recent home investigation. 443 So.2d at 496. The court distinguished its earlier opinion in Carlson as follows:

Carlson is markedly different in several respects from the ease now before us. First, the mother in Carlson voluntarily committed her children because she was financially unable to care for them. In the instant case, the children were taken from the mother because of her physical abuse. Second, the home living situation in general, and the financial plight of the family in particular, were the issues in Carlson. Those factors were not the issues here. Finally, in Carlson there was a definite change of circumstances which the mother was attempting to prove in order to show her ability to be a fit parent. Therefore, a recent evaluation was critical to her position. In the instant case, the mother does not argue that there has been any change which would affect her propensities regarding child abuse. She therefore does not indicate prejudice from the failure of HRS to make a recent home investigation.

Id.

We believe that Russell has not been prejudiced by HRS’ failure to conduct an in-home investigation as to her current living situation and ability to provide a proper and fit home. Unlike in Carlson, Russell did not voluntarily commit her children because she was financially unable to care for them but rather, they were adjudged dependent because Russell had been placed in a juvenile detention center. More importantly, the overriding issue here concerns abandonment or Russell’s lack of a genuine interest, as exhibited over almost a two-year period, in her children. While it is true that in the present case, as in Carlson, Russell was trying to show a change in circumstances which would indicate her ability to be a fit parent, and a current investigation would be significant in this regard, all the pertinent witnesses testified before the trial judge as to Russell’s current living situation and ability to provide a proper and fit home. Russell has not shown how a more recent HRS investigative report would have added anything to consideration of the issues under these circumstances. There is sufficient evidence to support a finding of abandonment: a remand would serve only to delay the inevitable.

As to the court’s failure to consider a predisposition report, while in In the Interest of R.A.L., 440 So.2d 473 (Fla. 5th DCA 1983), this court did order reversal of an order of permanent commitment because the trial court failed to consider the statutorily required predisposition report, see section 39.408(2), Florida Statutes (1983), that case involved a dependency petition and the court concluded that termination of parental rights was justified. In the instant case, the dependency action occurred in April, 1980 and it was following the adjudication of dependency that the predisposition study was to be considered by the court.

AFFIRMED.

COBB, C.J., and SHARP, J., concur.

      . The court noted that even at the hearing, Russell showed no "emotion or desire to receive her children" and showed no real concern for them. The court labeled her request to receive the children back as being "bland.”

      . The trial court observed that the children seemed content with their foster parents and that the foster parents planned to adopt them when the commitment proceedings were concluded.

        .See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Hinkle v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983); In the Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982).

      . As to Russell's apparent renewed interest in the children since filing of the petition for permanent commitment, we agree with the Second District’s observation in In the Interest of R. V.F., 437 So.2d 713, 714 (Fla. 2d DCA 1983), that "this cannot make up for the lengthy omission of support and communication which preceded the filing of the petition.” See also In the Interest of K.A.F., 442 So.2d 365 (Fla. 5th DCA 1983).

      . Section 39.408(2), provides as follows:
      DISPOSITION HEARING. — The court finds that the facts alleged in the petition for dependency are proven in the adjudicatory hearing. At the disposition hearing, the court shall receive and consider a predisposition study, which shall be in writing and be presented by an authorized agent of the department. The predisposition study shall cover for any dependent child all factors specified in s.61.13(3). A copy of this report will be furnished to the person having custody of the child at the time such person is notified of the disposition hearing. If placement of the child with anyone other than the child’s parent or custodian is being considered, the study shall include the designation of a specific length of time as to when custody by the parent or custodian will be reconsidered. This study shall not be made prior to the adjudication of dependency unless the parents or custodians of the child consent thereto.
      Any other relevant and material evidence, including other written or oral reports, may be received by the court in its effort to determine the action to be taken with regard to the child and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing.


author: PER CURIAM. COWART, Judge,

text:
    In the Interest of S.R.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-1770.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring:

This case involves the sufficiency of circumstantial evidence.

Two ladies, Jaquish and Ganey, with a rented car and two wallets containing money, met appellant, a juvenile, at a party on Cocoa Beach, Florida. Ganey looked in appellant’s wallet and saw that he had only three dollars. Soon after midnight the two women agreed to give appellant a ride home to Wildwood. Appellant sat on the front seat near Jaquish’s pocketbook that contained the ladies’ two wallets. The group stopped on the side of the road and rested and slept for about four hours. At about 6:00 a.m. they stopped at a quick service restaurant in Orlando. Appellant gave Jaquish three dollars from his wallet with which to buy some drinks. Jaquish first went into the restaurant. Appellant later went into the restaurant. Ganey remained in the car asleep. Jaquish and appellant then returned to the car and the occupants slept some more. About 8:30 a.m. appellant awoke Jaquish and told her he had called home, someone there had suffered a heart attack and that he had called a taxi to take him to Wildwood. After appellant left in a taxi the two women discovered their wallets and money were missing.

Appellant was charged with, and convicted of, delinquency as a result of grand theft of the two wallets. We affirm his conviction.

Appellant argues that the trial court erred in finding guilt because this is a circumstantial evidence case and, even if the facts be viewed as creating a strong probability of guilt, the state’s case was not inconsistent with the reasonable possibility (hypothesis) that someone other than appellant took the two wallets. Appellant cites Jaramillo v. State, 417 So.2d 257 (Fla.1982); McArthur v. State, 351 So.2d 972 (Fla.1977); Jenkins v. State, 342 So.2d 1097 (Fla. 1st DCA 1977); Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958); and other cases. Cf Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984); Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983); Bouler v. State, 389 So.2d 1197 (Fla. 5th DCA 1980).


author: COBB, Chief Judge.

text:
    Jimmy Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1831.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Chief Judge.

Jimmy Lee Davis appeals his two concurrent sentences of fifteen years incarceration. He challenges the propriety of the trial court’s departure from the sentencing guidelines recommendation.

On September 26,1980, Davis was placed on ten years’ probation with one year incarceration for robbery and aggravated battery. On December 7, 1983, he pleaded guilty to violating his probation by having committed two robberies and one attempted rape in Missouri, whereupon the trial court adjudicated him guilty of the robbery and aggravated battery. The Missouri court had sentenced Davis to 18 years on these offenses. At the sentencing hearing on December 9, 1983, defense counsel argued that the Missouri offenses could not be used in the scoring under the sentencing guidelines and the court agreed. Davis’ score was 74 without the Missouri offenses. This score had a potential sentence range of 30 months to three-and-a-half years. Fla.R.Crim.P. 3.988(c). The state requested that the trial court use the Missouri offenses as aggravating factors and the court stated:

THE COURT: ... I’m inclined to agree with the prosecutor, that this Defendant has demonstrated as soon as he was released he went back to robbery. And I think it would be a travesty of justice and serious threat to the peace of our community to permit this Defendant to go to jail for the period prescribed by the guidelines, a period of which he will serve 60 percent approximately and be released. He’s dangerous. It’s a wonder that somebody hasn’t been killed yet.
It’s going to be the sentence of this Court that the Defendant be remanded to the Department of Corrections for a period of — what was he adjudged on? Both? —for a period of 15 years on each count, these terms to be served concurrently to each other, but consecutive to any other sentence he might be serving anywhere else.

The written statement delineating the reasons for departure was as follows:

The defendant has committed two robberies since being placed on probation on this charge. He is a serious threat to the safety of society.

This appeal ensued.

Davis contends the sentence is excessive because the Missouri court has already sentenced him on the offenses which prompted the trial court to depart from the guidelines sentence recommendation. First, we note that the trial court correctly refused to use the Missouri convictions in the scoring. Florida Rule of Criminal Procedure 3.701(d)(5)(a) defines prior record for purposes of the sentencing guidelines as follows:

“Prior record” refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense. Prior record includes all prior Florida, federal, out-of-state, military and foreign convictions.

Sub judice, on April 3,1980, Davis committed the offenses for which he was being sentenced below. He committed the Missouri offenses on September 1 and 13, 1981, subsequent to the offenses which were the subject of the sentencing. Therefore, the Missouri offenses are not within the definition of “prior record.” This does not mean, however, that the trial court could not depart from the guidelines recommendation based upon the Missouri convictions. Florida Rule of Criminal Procedure 3.701(d)(ll) provides:

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

Nothing in the rule precludes departure based upon Davis’ Missouri convictions subsequent to his having been placed on probation, and certainly such serious misconduct is a clear and convincing reason for departure.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . This portion of the rule has been amended effective July 1, 1984, as follows:
      Departures from the guideline sentence: Departures from the presumptive — sentence guideline range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not-inelude factors-relating to either instant offense or-prior arrests for which-eonvictions have not been obtained. Reasons for deviating from' the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.


author: PER CURIAM. SHARP, Judge,

text:
    Lewis R. DOWDA, Petitioner, v. Dominick SALFI, etc., Respondent.
    No. 84-141.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    Lewis R. Dowda, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

Dowda petitions this court for a writ of prohibition to prevent the assigned trial judge from acting on his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Dowda's motion for disqualification of the trial judge, and the two accompanying affidavits, in essence allege that the trial judge should be disqualified because Dowda had brought a civil rights complaint against the judge in federal court and that while the civil rights complaint had been dismissed, an appeal of that dismissal was pending. We hold the reason given is legally insufficient to require the trial judge’s disqualification and deny the petition.

A defendant in a criminal case cannot disqualify a trial judge by merely filing a civil law action against the judge. To hold otherwise would permit a defendant to decide and control who will be the judge in his own case by merely filing lawsuits against judges he does not prefer. He could thereby ultimately select the judge he does prefer by naming all other judges as parties defendants in baseless civil actions. However, the merit or lack of merit of the defendant’s civil suit against the judge is immaterial. This is so because if the civil action has no merit the judge should not be disqualified and, if the civil action does have merit, then the basis for the civil action can then also be used as the substantive ground for disqualification under Florida Rule of Criminal Procedure 3.230. The mere filing of a lawsuit against the judge does not constitute a ground for disqualification. It is exclusively within the defendant’s control to file the lawsuit which may be frivolous and may not even allege facts which are legally sufficient to disqualify under Rule 3.230. This tactic cannot be approved and made a successful method to disqualify judges in criminal cases.

The petition for writ of prohibition is DENIED.

DAUKSCH and COWART, JJ., concur.

SHARP, J., concurs in result only with opinion.

SHARP, Judge,

concurring in result only.

I concur in the denial of the writ of prohibition in this case because Dowda failed to attach a copy of his civil action to his petition or to establish in any other way that the civil action has any merit. We must presume it was frivolous, and brought merely to obtain the disqualification of the trial judge under these circumstances. See Commonwealth v. Leventhal, 364 Mass. 718, 307 N.E.2d 839 (1974).

However, I disagree with the majority’s approach that appears to foreclose a criminal defendant from seeking to disqualify a judge from hearing his criminal cause while the judge is in an adversarial position with the defendant in a pending civil lawsuit of substance. In such a case, the judge should disqualify himself. The party seeking to disqualify a judge need only show a well grounded fear that he will not receive a fair trial at the hands of that judge. Livingston v. State, 441 So.2d 1083 (Fla.1983). The on-going trial of a meritorious civil matter, when the judge and the defendant are antagonists, would indeed be sufficient in my view, to cast doubt on the ability of the judge to act impartially in the criminal matter. To preserve the appearance of fairness and impartiality which is essential to the administration of justice, the judge should disqualify himself or be disqualified by a higher court from acting. Fla.R.Crim.P. 3.230.

      . See U.S. v. Corrigan, 401 F.Supp. 795 (E.D. Wyo.1975), reversed on other grounds, 548 F.2d 879 (10th Cir. 1977); Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145, 1149 (1980) ("ordinarily a member or members of this court engaged in legal action with a party appearing before this court in regard to another matter would voluntarily disqualify themselves.”); cf. Muka v. New York State Bar Association, 120 Misc.2d 897, 466 N.Y.S.2d 891 (N.Y.Sup.Ct.1983).


text:
    Eddie Lee VARNADO, Appellant, v. STATE of Florida, Appellee.
    No. 84-374.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Eddie Lee Varnado, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. However, this does not prejudice appellant’s right to file a 3.850 motion in the trial court based on ineffective assistance of counsel.

DAUKSCH, SHARP and COWART, JJ., concur.


author: DAUKSCH, Judge.

text:
    Stephen B. MOORE, Appellant, v. Ken W. SCHRAW and Schraw Realty, Inc., a Florida corporation, Appellee.
    No. 84-758.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.

      Patrick A. McGee, of Peirsol, Boroughs, Grimm, Bennett & Griffin, P.A., Orlando, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

This is an appeal from a non-final order vacating a final judgment entered on default.

Appellant (plaintiff below), Stephen Moore, filed a complaint against appellees (defendants), Ken Schraw and Schraw Realty, Inc., for breach of a construction contract and for the imposition of an equitable lien. On December 15, 1983, defendants were served with a complaint, notice of lis pendens, notice of taking deposition, and a request for admissions. On January 6, 1984, plaintiff filed a motion for default. The clerk for Seminole County entered a default January 10, 1984 against defendants for failure to respond to the complaint within the twenty day period provided for by the Florida Rules of Civil Procedure. Plaintiff also served a notice of cancellation of deposition on January 10. Plaintiff filed a motion for entry of final judgment on February 13,1984. The court entered final judgment on the default on March 5, 1984.

On March 28, 1984, defendants filed a motion to vacate final judgment and to set aside the default. Defendants argued that the plaintiff should have served him with his motion for default and given notice of hearing prior to the default being entered. Furthermore, defendants submitted that negotiations had been entered into between the parties and that he was misled with regard to whether he would be required to respond to plaintiff’s complaint. A hearing was held on April 24, 1984, and the court entered an order vacating the final judgment and setting aside the default. The court held that notice was required prior to the default being entered. We disagree.

Because no responsive pleadings or papers were filed by defendants prior to the default being entered the default was properly entered against them without any notice. See Rule 1.500(a), Fla.R.Civ.P.; L.B.T. Corp. v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); Fierro v. Lewis, 388 So.2d 1361 (Fla. 5th DCA 1980). The only remaining question is whether the court had an alternative basis for vacating the default judgment.

A court may grant a motion to vacate a default judgment where the moving party establishes that a meritorious defense exists and that he has a legal excuse for failing to comply with the rule. See L.B.T. Corp.; B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). Here defendants failed to verify by sworn affidavit that a meritorious defense existed. The defendants’ motion to vacate the final judgment of default was unsworn and therefore was insufficient to support the court’s order vacating the default judgment even though the motion had attached to it several documents which, if verified, could have provided a basis for establishing a meritorious defense. See Westinghouse Elevator Company v. DFS Construction Company, 438 So.2d 125 (Fla. 2d DCA 1983). Furthermore, and most importantly, defendants’ motion to vacate did not establish excusable neglect.

The order vacating the final judgment and setting aside the default is vacated and the judgment reinstated.

REVERSED.

COBB, C.J., and ORFINGER, J., concur.


author: COWART, Judge. COBB, Chief Judge,

text:
    Dianne Janney LAYMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 84-778.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    Larry Mark Polsky, Daytona Beach, for petitioner.

      Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondent.
   COWART, Judge.

By petition for certiorari we are asked to review the appellate decision of the circuit court affirming, without opinion, the conviction of petitioner in the county court.

We have exercised discretion and have reviewed the issues presented. We hold that section 316.193(1), Florida Statutes (1983), as it exists after July 1, 1982, the effective date of Chapter 82-155, Laws of Florida, describes but one offense which can be committed by either or both of two methods, i.e., the driving or being in the actual physical possession of a vehicle within this state by a person (a) who is under the influence of alcoholic beverages, chemical substances or control substances to the extent that normal faculties are impaired (§ 316.193(l)(a)), or (b) with a blood alcohol level of 0.10 percent or above (§ 316.193(l)(b)), or both driving under the influence (DUI) and with an unlawful blood alcohol level (DUBAL).

A Florida Uniform Traffic Citation or Notice to Appear, alleging a violation of section 316.193, without specification of either subsection (l)(a) or (l)(b), is sufficient to charge a violation of this statute in either of the two ways it can be violated. Of course, the State may more specifically charge that both subsections have been violated or it may charge the violation of one subsection without charging the violation of the other. The issues presented to the jury by verdict forms should not exceed the issues presented by the charging document. If a violation of both subsections is charged, then, in addition to the alternative of not guilty, the jury verdict may submit the issue of guilt as a violation of section 316.193(1) or, separately, as either a violation of section 316.193(l)(a) (DUI) or a violation of section 316.193(l)(b) (DUBAL). If the charging document is sufficient to charge both ways of violating this statute, the theoretical verdict alternatives are that the accused violated both subsections (guilty) or either subsection (guilty) or neither subsection (not guilty).

Finding no error at either the trial or appellate level the petition for certiorari is

DENIED.

SHARP, J., concurs.

COBB, C.J., concurs in result with opinion.

COBB, Chief Judge,

concurring in result:

In the exercise of the discretion of this court, I would simply deny certiorari review of this matter on authority of Combs v. State, 436 So.2d 93 (Fla.1983).

      . Combs v. State, 436 So.2d 93 (FIa.1983).

      . We are not here concerned with the construction of section 316.193, Florida Statutes, as it existed before the amendment made by chapter 82-155, Laws of Florida, or the right to a jury trial involved in Whirley v. State, 450 So.2d 836 (Fla.1984).


author: DANAHY, Judge.

text:
    Torr NELSON, a minor child, By and Through his natural guardian and next of kin, Algerian BOWENS, Appellant, v. Mitchell HOWELL, Appellee.
    No. 83-1856.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1984.

      Martin J. Jones, St. Petersburg, for appellant.
    Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellee.
   DANAHY, Judge.

The question before us is whether a private citizen is justified in using deadly force to prevent the escape from the citizen’s custody of a person who committed a felony in the citizen’s presence. We hold that the use of such force is justifiable if it appears to the citizen to be reasonably necessary to prevent the felon’s escape, and remand this case for determination by a jury whether the use of force in this case was reasonably necessary under the circumstances.

This is a civil action brought by the alleged felon to recover damages for injuries sustained when the appellee shot him in the back in an effort to prevent his escape after he committed a burglary in the presence of the appellee.

The facts are essentially undisputed. The appellee is the owner of a seafood store in a shopping center. He knew the appellant well and suspected the appellant of being the person who had broken into the store on several occasions. On the day in question, a Sunday, the appellee was in the back of his store hoping to catch the person who had been breaking in. The appellee heard a noise and looked out front. There he saw the appellant inside the store walking toward the back. The appellee grabbed the appellant, who began struggling with him. The appellee told the appellant to settle down and that he was going to call the police. As the appellee started to release the appellant, the appellant turned and ran out the rear of the store.

The appellee gave chase and grabbed a gun as he left the rear of the store. The appellant went out the back door with the appellee following him and yelling at him to stop or that he would shoot. The appel-lee fired a warning shot and then, realizing that he was not going to be able to catch up with the appellant on foot, fired his gun and shot the appellant in the back.

The trial judge entered a summary judgment for the appellee, ruling that a private citizen has a common law right to arrest a person who commits a felony against him and in his presence and thus is justified in using whatever force is necessary to effectuate such an arrest. We agree with the statement of law, but disagree with the trial judge’s tacit ruling that, as a matter of law, force was necessary in this case.

Florida follows the common law rule that a private citizen may arrest a person who commits a felony in his presence. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962). The right to arrest a person includes the right to try to prevent his escape. The question is whether the private citizen may use force to effectuate the arrest or to prevent the escape. Although there is some conflict of authority on this question, the prevailing view seems to be that where a private citizen has in his custody a person who has committed a felony in the citizen’s presence and the felon attempts to flee, the citizen may use such force in preventing the escape as is necessary, or as appears to him in the exercise of reasonable discretion to be necessary, even to the extent of taking life. Annot., 32 A.L.R.3d 1078 (1970). We align ourselves with the prevailing view.

The crucial issue in this case is whether it was necessary under the circumstances, or reasonably believed by the ap-pellee to be necessary under the circumstances, to shoot the appellant to prevent his escape. We believe this is a judgment call which should be made by a jury. Accordingly, we reverse the summary judgment for the appellee and remand for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . We do not agree with the appellee’s argument that § 776.07, Fla.Stat. (1983) provides statutory authority for the use of force by a private citizen to prevent an alleged felon’s escape from the citizen’s custody. We believe the words "or other person” used in that section refer to a person summoned by a law enforcement officer to assist the officer in making an arrest or preventing an escape, as mentioned in § 776.05. There is no statutory authority for a citizen’s arrest.


text:
    Rafael ROJAS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2118.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Bennett H. Brummer and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Toyos, 448 So.2d 1135 (Fla. 3d DCA 1984); State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975).


text:
    Lawrence B. RODGERS, Appellant, v. Michael I. ROSE and Janice Revitz, P.A., Appellees.
    No. 83-1539.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Horton, Perse & Ginsberg and Edward Perse, Miami, for appellant.
    Michael I. Rose, Miami, for appellees.

      Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Finding that the record contains substantial, competent evidence to support the trial court’s determination that the written retainer agreement providing for a division of fees between the parties in this action is valid and enforceable, we affirm the final judgment.

Affirmed.


text:
    James O. JOHNSON, SR., as Personal Representative of the Estate of James O. Johnson, Jr., a/k/a Jimmy Johnson, Deceased, Appellant, v. Jane A. DAROFF, Robert Daroff, Jr., a minor by and through his father and next friend, Robert Daroff, M.D., Greyhound Rent-A-Car, a corporation, United Services Insurance Company, Aetna Casualty & Surety Company, Darrell Bezet, and Thomas Gibbons, Appellees.
    No. 83-2150.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Weaver, Weaver & Lardin and Marilyn P. Liroff, Fort Lauderdale, for appellant.
    Corlett, Killian, Hardeman, McIntosh & Levi and Leanne J. Frank, Baskin & Stein-gut and Gary M. Dunkel, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Finding that the record reflects the existence of a genuine issue of material fact on the question of the deceased’s dependency, we reverse and remand to the trial court for further proceedings. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.


text:
    Alexis GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2169.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Cuciak v. State, 410 So.2d 916 (Fla.1982); Sullivan v. State, 430 So.2d 519 (Fla. 2d DCA 1983).


text:
    Pedro BOZA, Appellant, v. The STATE of Florida, Appellee.
    No. 84-227.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.

      Bennett H. Brummer and Jose R.E. Batista, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Lawson, 446 So.2d 202 (Fla.3d DCA 1984); State v. M.N.M., 423 So.2d 987 (Fla.3d DCA 1982); Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, — U.S. —, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983).


text:
    David SCHWARTZ, Alex Smilow, Sidney Teichman, Jack Fogel, Martin Berkowitz, Jack Bernstein, Barry Hoffman, Harry Friedman, d/b/a Bayview Associates, a Florida General Partnership, Appellants, v. LINCOLN CONSTRUCTION & DEVELOPMENT CORPORATION, a Florida corporation, and Boris Edelman and Ludmila Edelman, individually, Appellees.
    No. 84-509.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Paul S. Berger, Miami, for appellants.
    Greenfield & Duval and Leo Greenfield, North Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The trial judge’s extensive findings which concluded that a contract for the purchase of several condominium units was a disguised usurious mortgage loan will not be disturbed by this court because they are supported by clear and convincing evidence in the record. See Marsh v. Marsh, 419 So.2d 629 (Fla.1982); DuPont Plaza, Inc. v. Samuel Kipnis Family Foundation, 132 So.2d 352 (Fla. 3d DCA 1961), cert. denied, 146 So.2d 382 (Fla.1962).

The evidence shows that (1) appellants (purchasers) and appellees (developers) entered into an agreement for the sale of five condominium units for an alleged precon-struction purchase price of $372,800, whereby the developers were to deliver the apartments within twenty months or, in the alternative, pay the sum of $559,200 to the purchasers — the difference between the two amounts being exactly 30% per an-num for the twenty-month life of the note, (2) the purchase money was not paid into an escrow account as required by Section 718.202(1), Florida Statutes (1983), (3) the proposed units could not be constructed and sold within the twenty-month period contemplated by the agreement, and (4) the developers were required to pay the purchasers a mortgage “finder’s fee” of $36,-200. See Burket v. Johnson, 61 So.2d 197 (Fla.1952) (agreement to purchase property construed as a loan subject to usury penalties); Lee Construction Corp. v. Newman, 143 So.2d 222 (Fla. 3d DCA), cert. denied, 148 So.2d 280 (Fla.1962) (where the lender intentionally charges interest at a rate in excess of that allowed by statute, he is guilty of usury regardless of what device is used to make the transaction appear other than a loan and interest thereon).

Affirmed.

      . The appellants were found to have violated Section 687.071(2), Florida Statutes (1983) which provides:
      Unless otherwise specifically allowed by law, any person making an extension of credit to any person, who shall willfully and knowingly charge, take, or receive interest thereon at a rate exceeding 25 percent per annum ... shall be guilty of a misdemeanor of the second degree....


text:
    CITY OF HOMESTEAD, Appellant, v. Robert CHESTER and Southwestern Security Systems, Inc., Appellees.
    No. 84-1178.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Carson & Linn and John D.C. Newton, II, Tallahassee, for appellant.
    Stephen Cahen and Keith Chasin, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. § 48.111(l)(a), Fla.Stat. (1983); Baynard v. Windom, 63 So.2d 773 (Fla.1952).


text:
    Jaime Alonzo GAMBOA and Marina Gamboa, Appellants, v. Iona Laverne JONES, Appellee.
    No. 84-1183.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.

      Lopez & Perez-Gurri and Susan L. Major, Coral Gables, for appellants.
    Burt E. Redlus, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The appellants, defendants below, appeal from an order denying their motion to set aside a default entered against them and an order denying their motion to quash the service of process upon them. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982), approving Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981), affd, 411 So.2d 872 (Fla.1982). Cognizant of the admonition that statutes governing substituted service of process must be strictly complied with, see Herskowitz v. Schwarz & Schiffrin, 411 So.2d 1359 (Fla. 3d DCA 1982); Hauser v. Schiff 341 So.2d 531 (Fla. 3d DCA 1977), we reverse the orders under review upon a holding that (1) where, as here, the sole evidence before the trial court revealed that the person upon whom process was served did not reside with the defendants, but rather was visiting with them for a ten-day period, the requirement of Section 48.031(1), Florida Statutes (1983), that a copy of the process be left with a person “residing” in the usual place of abode of the defendants was not met, the service was thus ineffective, and no in personam jurisdiction over the defendants was obtained, compare Couts v. Maryland Casualty Co., 306 So.2d 594 (Fla. 2d DCA 1975), with Sangmeister v. McElnea, 278 So.2d 675 (Fla. 3d DCA 1973) ; and (2) where, as here, no jurisdiction over the defendants was obtained, the defendants were not required to demonstrate a meritorious defense to the allegations of the complaint in order to be entitled to relief. See Hyman v. Canter, 389 So.2d 322 (Fla. 3d DCA 1980); Mac Organization, Inc. v. Harry Rich Corp., 374 So.2d 81 (Fla. 3d DCA 1979).

Reversed and remanded with directions to vacate the default and quash service of process.

      . Both Couts and Sangmeister were decided under the predecessor to Section 48.031(1), which required that substituted service be made by leaving a copy at the defendant’s "usual place of abode with some person of the family over fifteen years of age _” (emphasis supplied).
      The emphasized words having been construed to require residence in the household rather than kinship with the person to be served, see Pyles v. Beall, 37 Fla. 557, 20 So. 778 (1896); Couts v. Maryland Casualty Co., 306 So.2d 594, the statute was apparently changed to its present form to reflect that construction. Thus, the holding in Couts that a relative visiting for a few days is not a person of the family is effectively a holding that such a short-term visitor is not a person residing in the usual place of abode of the defendant, and the holding in Sangmeister that a relative visiting for four months is a person of the family is effectively a holding that such a long-term visitor is a resident.


text:
    Hezekiah SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-989, 83-1651 and 83-1844.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The sole issue meriting discussion is whether the trial court has jurisdiction to enter sanctions against a youthful offender for violating the terms of his community control program. Following our recent decision in Clem v. State (Fla. 4th DCA, Case No. 81-2243, opinion filed August 29, 1984), the trial court has jurisdiction to consider the violation of the terms of his community control program. Accordingly, we affirm and the same questions certified in Clem v. State, supra, are incorporated herein by reference and likewise certified.

AFFIRMED.

LETTS, HURLEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge. ANSTEAD, Chief Judge, LETTS, Judge,

text:
    Harry SNOW and Lucy Snow, Appellants, v. John D. ROSSE, Appellee.
    No. 83-1114.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1984.
    John D. Cassels, Jr. of Law Office of John D. Cassels, Jr., Okeechobee, for appellants.

      Richard B. Kay, North Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order which awarded an attorney’s fee of $4,000 pursuant to section 57.105, Florida Statutes (1983), against mortgagees who unsuccessfully sought to foreclose a purchase money mortgage against the parties who acquired the subject property from the original mortgagors. We reverse.

Although we have no transcript of the hearing on the motion for the attorney’s fee, we do not need it because paragraph 3 of the motion recites the basis for the award:

3. The evidence presented by the Defendant, JOHN D. ROSSE, at trial indicated that the Plaintiffs claims that they did not receive mortgage checks for the months of July and August, 1981, were totally baseless, false in fact, and a sham, thus giving rise to a complete absence of a justiciable issue of law or fact by the Plaintiff. The evidence indicated quite clearly that the Defendant had tendered payments through Mrs. Mary Provost, for the months of July and August, 1981. Copies of the face of those checks, pursuant to Mrs. Provost’s records were presented as evidence, along with the original of the check registers indicating the checks to the Plaintiff were written on time and mailed to the Plaintiffs at their address in Strouds-burg Pennsylvania. Further, the testimony of Mrs. Provost and her husband, Norwood Provost, indicated that both had spoken to the Plaintiff, HARRY SNOW, and MR. SNOW had indicated to them that he had received the said checks but was not going to cash them. The testimony from the Plaintiff himself indicated that he was angry over not being notified of the sale of the property and wanted to be paid off in full.

Our review of the transcript of the trial, as well as the pleadings, order on summary judgment and affidavits submitted for and against appellee’s motion for summary judgment, reveals that this is a garden variety lawsuit in which one of the plaintiffs testified everything was black and the defendants’ key witness testified it was white. Permitting a fee award under section 57.105 in that kind of a lawsuit because the trial judge does not believe the plaintiff who initiated the action is telling the truth, would be, in our opinion, taking the statute down a road never contemplated by the legislature; namely, Swearing Match Lane.

The facts show that the real estate broker responsible for making the mortgage payments for the new purchasers of the subject property and collecting income therefrom testified that she timely sent two monthly checks to Pennsylvania where the mortgagee resided. She further testified to a telephone conversation with the mortgagee thereafter wherein he allegedly acknowledged that he had received the checks and was not going* to cash them because he was angry about the sale of the property and wished to be paid in full for the mortgage indebtedness. The broker’s husband similarly testified that the mortgagee acknowledged in a telephone conversation that he had received the checks in question. The trial judge undoubtedly believed that the mortgagee wanted the unpaid balance paid for no other reason than the low interest, 7%, and lengthy amortization, ten remaining years.

The mortgagee testified at trial as well as swearing by affidavit in opposition to the mortgagors’ motion for summary judgment — which the trial court denied — that he never received the two checks. He further denied telling the broker he had received the checks and described their telephone conversation as relating to a fire on the premises and an insurance check resulting therefrom.

The American patriot, Thomas Paine, said:

But such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.

The appearance of truth in a courtroom can often be a matter of perception. Perhaps more important, we cannot think of many worse failures in the test of honor than the lie or fabrication; and because the badge of “liar” is such a chilling, despicable epithet, it seems only fitting that the proof of such stigma be overwhelming. Here, an interested witness, the broker responsible for the payments, gave her version of the facts, as did her husband. There is no certified mail, return receipt stamp to reflect receipt. In fact the only documentary evidence is the little starter kit that a bank gives a new customer opening an account, which reflects entries by the broker in chronological fashion, including the subject checks. In short, it is one thing for a fact finder to disbelieve a plaintiff; but it is quite another not only to find against him but also to brand his forehead with “L” in the form of a $4,000 penalty.

We can envisage an appropriate case, in which the proof of a fabricated action or defense is overwhelming, where such penalty could withstand review. In this case, however, both Pennsylvania and Florida lawyers, in addition to the trial judge, were told the same story by their mortgagee client. In these circumstances, it seems onerous enough to lose because of the trial court’s disbelief in the mortgagee’s story, without the additional embarrassment of being taxed with attorney’s fees, when the proof of fabrication is not overwhelming, and the record does not reflect recklessness and gullibility on the plaintiff’s attorneys’ part.

Ironically, we shall never know if the mortgagors would ever have raised this issue had not the instrument involved been the office form note and mortgage providing for an attorney’s fee only for the mortgagee.

ANSTEAD, C.J., dissents with opinion.

LETTS, J., concurs specially with opinion.

ANSTEAD, Chief Judge,

dissenting.

After sitting through a bench trial the trial judge determined, based upon his evaluation of the credibility of the witnesses, that the testimony of the appellant, Harry Snow, that he had not received the relevant mortgage payments was false. There is an abundance of evidence in the record to support this determination, including the direct testimony of two witnesses that Snow had admitted to them that he had received the payments. Surely, a false claim is a frivolous one. For that reason I would sustain the award of attorneys’ fees under section 57.105. See, e.g., Stivarius v. DiVall, 106 Wis.2d 770, 318 N.W.2d 25 (1982).

LETTS, Judge,

specially concurring.

I would concur without comment, but for the dissent.

To explain, I am apprehensive that the dissent may be cited as support for the proposition that any time a trial judge passes on the credibility of witnesses, the court’s preference may activate the allowance of fees under Section 57.105. As I read Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982), that would not be possible save in the most exceptional circumstances not in my opinion present in the instant case.


author: RYDER, Chief Judge.

text:
    ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellant, v. Robert GILLESPIE, John J. Stewart, Jr., M.D., and Independent Fire Insurance Company, a foreign corporation, Appel-lees. and Robert GILLESPIE, Cross-Appellant, v. John J. STEWART, Jr., M.D., Cross-Appellee.
    No. 83-1642.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.

      C. Wade Yeakle, III, P.A., St. Peters-burg, for appellant.
    J.L. “Skip” Miller, St. Petersburg, for appellee/cross-appellant Gillespie.
    James E. Deakyne, Jr. and Robert F. Nunez, St. Petersburg, for appel-lee/cross-appellee Stewart.
    Kenneth C. Deacon, Jr. of Harris, Barrett & Dew, St. Petersburg, for appellee Independent Fire Ins. Co.
   RYDER, Chief Judge.

In the recent case of Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla.1984), our supreme court addressed the question of an automobile insurer’s liability for injuries “arising out of the ownership, maintenance, or use of a motor vehicle.” Novak held that when a driver was attacked and shot while sitting in a car by a person to whom she refused entry, she was entitled to personal injury protection benefits under the insurance policy covering the automobile. The court found a sufficient causal connection between the use of the automobile and the driver’s injuries. We are today confronted with yet another factual variation of a claim for injuries allegedly arising from the use of an automobile.

Although the parties disputed what happened, there is substantial evidence in the record to support the trial judge’s findings that the testimony of appellee, John J. Stewart, Jr., and of an uninterested witness, Ronald Collmeyer, was credible and that the testimony of appellee/cross-appel-lant Robert Gillespie, was not credible. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976). Stewart testified that he was in his automobile stopped at a red traffic light when Gillespie approached him on foot and began assaulting him. Gillespie testified that although Stewart had cut off his vehicle in traffic, when he initially approached Stewart’s vehicle he was merely offering aid to Stewart whom he thought to be a disabled motorist. However, Mr. Collmeyer testified he observed the acts of the parties and overheard their voices during the Gillespie-Stewart confrontation. Mr. Collmeyer related that Gillespie was shouting at Stewart calling him a “son-of-a-bitch” and other “names.” Gillespie, according to Collmeyer, ordered Stewart to get out of the car and fight like a man. During this time, Gillespie attempted to hit Stewart through an open door window. Collmeyer further testified that Stewart also attempted to drive his car through the traffic light but was blocked by cross traffic. Stewart then moved over in the seat to avoid Gillespie and raised the window. Thereafter, Gillespie further attempted to strike Stewart taking advantage of an open sun roof. Stewart was unsuccessfully attempting to repel the attack when he took a revolver from the car’s glove compartment and, during a struggle over the gun, fired it several times, injuring Gillespie. Stewart testified that he fired the gun to frighten Gillespie rather than harm him.

Gillespie sued Stewart for damages stemming from his injuries. In a separate action, now before this court, Allstate Insurance Company, Stewart’s automobile liability insurer, asked the court to declare whether its policy provided coverage in connection with the incident. The policy covered “claims for accidents arising out of the ownership, maintenance or use, loading or unloading” of the insured automobile. The policy also promised to defend the insured if sued.

After a nonjury trial, the trial judge ruled that the use of Stewart’s automobile was inexorably tied to the incident at issue, that Stewart was covered under Allstate’s policy, and that he was entitled to a defense by Allstate. Allstate appeals from that ruling.

Allstate argues, relying on Florida Farm Bureau Insurance Co. v. Shaffer, 391 So.2d 216 (Fla. 4th DCA 1980), petition for review denied, 402 So.2d 613 (Fla.1981), that the incident did not arise out of the use of Stewart’s automobile, therefore, Stewart is not covered under the policy. It is well established that for the insurance coverage to apply it is not necessary that the use of automobile proximately cause the injury but rather that there be a nexus between the automobile and the injury. Novak; Government Employees Insurance Co. v. Batchelder, 421 So.2d 59 (Fla. 1st DCA 1982); Auto-Owners Insurance Co. v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976). The inquiry should be whether the attack arose out of, or flowed from, the use of the vehicle. Novak (quoting Novak v. Government Employees Insurance Co., 424 So.2d 178, 180 (Fla. 4th DCA 1983)).

Being mindful of the rule that the phrase “arising out of the use of a motor vehicle” should be liberally construed to effect broad coverage, Novak; Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974), cert. dismissed, 341 So.2d 975 (Pla.1976), we agree with the trial judge that the incident was, indeed, inexorably tied to Stewart’s use of his automobile. Gillespie became enraged because of the manner in which Stewart drove his car, which precipitated and led to Gillespie’s attack on Stewart. Surely, this is certainly sufficient nexus between the car and the injury.

Although the Fourth District’s decision in Shaffer gives us pause, Shaffer relied on foreign law, Nationwide Mutual Insurance Co. v. Knight, 34 N.C. App. 96, 237 S.E.2d 341 (1977), while we are guided by our supreme court’s teachings in Novak. We also note that the Shaffer court denied coverage when the insured was the aggressor. In the ease sub judice, however, as in Novak, the insured was the non-aggressor and victim of an attack.

As to Allstate’s second point on appeal, we find substantial evidence in the record to support the trial court’s ruling. As to Allstate’s third point on appeal, the issue of whether Allstate is liable for any punitive damages which may be awarded to Gillespie is not properly before this court at this time. There has been no final resolution of Gillespie’s action against Stewart and no award of any damages.

Gillespie cross-appeals, claiming that the trial court’s judgment is void as to him because the cause was not at issue under Florida Rule of Civil Procedure 1.440(a) at the time of trial. We find no merit in this point. Although Gillespie’s motion to dismiss Allstate’s complaint was unresolved at the time of trial, Gillespie was served with two motions to set the case for trial and two orders setting the trial dates. Gillespie never objected to the motions nor sought relief from the orders. Gillespie also failed to appear either in person or through counsel at trial. In addition, he never sought a hearing on his motion to dismiss. A litigant may not sit on his hands, fail to voice his objections, and then claim prejudice when a final judgment is entered which may adversely affect him. Furthermore, he may not raise his objections for the first time on appeal. Procedural irregularities to which no objection is made are waived. Liberty Mutual Insurance Co. v. Dilenge, 312 So.2d 251 (Fla. 3d DCA 1975); Marsh v. Sarasota County, 97 So.2d 312 (Fla. 2d DCA 1957), cert. denied, 101 So.2d 816 (Fla.1958).

In summary, we affirm in all respects the lower court’s judgment, holding that there is competent, substantial evidence in the record and law to support it. We hold that, under these facts, Allstate’s policy provides coverage to Stewart and Allstate has the duty to defend Stewart in the action brought by Gillespie and any other actions stemming from the incident in question. We also hold that Gillespie’s cross-appeal is without merit.

AFFIRMED.

DANAHY and CAMPBELL, JJ., concur.


text:
    Robin PISUT, a minor, by her natural guardian and next friend, Lavere PISUT, and Lavere Pisut, individually, Appellants, v. Alan K. SICHELMAN, M.D. and Paul F. Wallace, M.D., Appellees.
    No. 83-1881.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.

      Edna L. Caruso, P.A. and Charles C. Powers of Reed & Powers, West Palm Beach, for appellants.
    William E. Hennen of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, P.A., Tampa, for appellee Sichelman.
    Kenneth C. Deacon, Jr. of Harris, Barrett & Dew, St. Petersburg, for appellee Wallace.
   RYDER, Chief Judge.

The recent decision of our supreme court in Cates v. Graham, 451 So.2d 475 (Fla.1984), gives us excellent guidance in deciding the ease sub judice. Yet, this matter presents facts which make difficult our decision regarding the constitutionality of section 95.11(4)(b), Florida Statutes (1977). On October 15, 1982, Robin Pisut, a minor, and her mother, Lavere Pisut, filed suit against numerous health care providers including Drs. Alan K. Sichelman and Paul F. Wallace. Only three counts of the multi-count complaint are the subject of this appeal.

Count I alleged that on December 29, 1976, Dr. Sichelman failed to adequately diagnose and treat Robin Pisut’s osteo-myelitic condition. Count II alleged that Dr. Sichelman negligently treated Robin on several dates in March and April 1977, ending with April 5, 1977. Count IX alleged that Dr. Wallace negligently treated Robin during the period from March 24, 1977 through March 31, 1977. While appellants asserted two other counts against Dr. Si-chelman, Dr. Wallace was named in only Count IX.

The trial court entered a final judgment on the pleadings as to Counts I, II and IX in favor of the physicians because the actions were barred by the limitations period in section 95.11(4)(b). Although there was a question regarding this court’s jurisdiction to entertain an appeal as to Counts I and II concerning Dr. Sichelman before other counts in the complaint involving him were resolved, both parties agree that Counts I and II assert separate and distinct causes of action which are independent from the other counts of the complaint. Therefore, the final judgment as to Counts I and II is appealable. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

Appellants argue that section 95.-ll(4)(b) is unconstitutional as applied to this case in that the statute did not provide appellants a reasonable time in which to file suit before their actions were barred. The statute provides, in pertinent part, that “in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.” The date of the incident is the last date of the allegedly negligent medical treatment. Cates v. Graham, 427 So.2d 290 (Fla. 3d DCA 1983), affd, 451 So.2d 475 (Fla.1984).

As to Count I, the date of the incident was December 29, 1976 and the action was barred on December 30, 1980. As to Count II, the date of the incident was April 5, 1977, and the action was barred on April 6, 1981. As to Count IX, the date of the incident was March 31,1977, and the action was barred on April 1, 1981.

Appellants assert in their reply to appel-lees’ affirmative defenses that they did not become aware of the cause of action until December 28, 1980, when they discovered that Robin was severely ill with osteomyeli-tis. Therefore, they argue that they had only one day to file Count I and approximately three months to file Counts II and IX before the limitations period ran.

Our supreme court in Cates held that a five to six-month period remaining after the discovery of an injury is not so short as to make section 95.11(4)(b) unconstitutional as applied. While three months might be a reasonable time for a plaintiff to bring an action, we do not think the statute would be constitutional as applied if a claimant had only one day to file suit after discovery of an injury. See Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979). Nevertheless, appellants here are in no position to complain that the statute was unconstitutionally applied to them. First, their assertion that their cause of action was discovered on December 28, 1980 is contradicted by allegations in their amended complaint that Dr. Sichel-man noticed an osteomyelitic lesion in March 1977, and diagnosed chronic osteo-myelitis in May 1977, three and one-half years before the earliest limitations period ran. Second, appellants did not bring suit until almost two years after December 28, 1980, the latest date they contend they discovered their cause of action. At the most, appellants were only entitled to a reasonable time to bring suit after discovery of the injury. If, as in Cates, the failure to file an action within five to six months precludes relief, the appellants’ inaction for nearly two years must surely be fatal.

We hold, following Cates, that the time periods involved in this case do not render section 95.11(4)(b) unconstitutional as applied to appellants. A statute of repose is constitutional when it merely curtails the time in which to file a suit. Cates; Bauld v. J.A. Jones Construction Co., 357 So.2d 401 (Fla.1978).

Appellants also contend that because Dr. Sichelman misrepresented and concealed his negligence, the seven-year limitations period in the last sentence of section 95.11(4)(b) should apply. By the terms of the statute, this last sentence applies only in cases where the injury is not discovered within four years of its infliction. Carlton v. Ridings, 422 So.2d 1067 (Fla. 1st DCA 1982). There is no dispute that appellants discovered the injury within the four-year period, rendering the seven-year limitations period inapplicable in this case. See Cobb v. Maldonado, 451 So.2d 482 (Fla. 4th DCA 1984).

We affirm the trial court’s decision and hold that appellants’ actions asserted in Counts I, II and IX against Drs. Sichelman and Wallace are barred because not brought within the limitations period.

AFFIRMED.

GRIMES and SCHEB, JJ., concur.

      . Section 95.11(4)(b) provides:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from, the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An "action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the healthcare provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.