author: HERSEY, Judge.

text:
    Richard C. GLINTON, Petitioner, v. Richard WILLE, as Sheriff of Palm Beach County, Florida, Respondent.
    No. 84-1959.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Rehearing Denied Oct. 31, 1984.

      Joseph S. Karp of Bernstein, Narkier, Monchick & Karp, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

Richard C. Glinton petitions this court for issuance of a writ of habeas corpus to review the trial court’s order revoking his pretrial bond and adjudicating him guilty of contempt of court, for which he was sentenced to five months and twenty-nine days in prison.

In October 1983 petitioner was charged with possession of marijuana with intent to sell and was released on $1,000 bond. In August, 1984, on motion of the state, the trial court ordered that as a condition of the bond petitioner stay out of the “field” on the southeast corner of Wingfield Street and 15th Avenue South in Lake Worth, Florida. That “field” is located in petitioner’s neighborhood and is known as an area where drugs are sold.

In September, 1984, the state moved to revoke or increase petitioner’s bond for violation of this condition. At the hearing on the motion, a police officer testified he had observed petitioner in the “field” at the corner of Wingfield and 15th Avenue. The trial court revoked petitioner’s bond and held him in indirect contempt of court for violating the court’s order imposing the condition.

An accused who is not charged with a capital offense is entitled to pretrial release on reasonable conditions, unless “no conditions of release can reasonably protect the community from rish of physical harm to persons, assure the presence of the accused at trial, or insure the integrity of the judicial process.” Fla.R.Crim.P. 3.131(a). Petitioner correctly contends the requirement that he stay out of the “field” was an improper condition of release.

There is no evidence that the purpose of the trial court’s order imposing the condition was other than to prevent him from engaging in the selling of illegal drugs. The “field” was a known area for drug transactions, and petitioner was accused of that very crime. In Harp v. Hinckley, 410 So.2d 619 (Fla. 4th DCA 1982), this court recognized that the primary purpose of bail is to ensure the defendant’s presence at trial and that it is improper to use bail “as a means to prevent possible future misconduct by the defendant.” Id. at 624. Florida Rule of Criminal Procedure 3.131(a), as amended in 1983, does permit use of conditions of release to protect persons in the community from physical harm, but that purpose is not applicable here. See also Carter v. Carson, 370 So.2d 1241 (Fla. 1st DCA 1979) (condition of pretrial release prohibiting defendants from selling obscene material improper as not bearing any relationship to insuring their appearance at future court proceedings). Thus, the trial court could not impose the condition on petitioner where its purpose in doing so was other -than as permitted by Rule 3.131, Florida Rules of Criminal Procedure. We find the condition invalid.

The police officer’s testimony provides sufficient evidence to establish, preliminarily, that petitioner violated an order of the trial court. That violation would constitute criminal contempt (as it was “directed against the authority and dignity of a court” and petitioner did a “duly forbidden act,” Vines v. Vines, 357 So.2d 243, 246 (Fla. 2d DCA 1978)) so long as there was evidence that petitioner intended to disobey the court’s order. It cannot be ascertained from the petition, motion to dismiss, and response filed in this court whether the requisite intent was present. There is no indication of the circumstances under which petitioner was present at the prohibited place. It is possible, (though unlikely), that he was brought there against his will; thus, the element of “intent” would be lacking, and petitioner would not be guilty of criminal contempt.

However, even if petitioner did intend to commit the violation, the order holding him in contempt of court was entered in violation of procedural due process. The court failed to comply with Rule 3.840 of the Florida Rules of Criminal Procedure, which provides in pertinent part:

(a) Indirect (Constructive) Criminal Contempt. A criminal contempt except as provided in the preceding subsection concerning direct contempts, shall be prosecuted in the following manner:
(1) Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
(2) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.-
(4) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own defense.
All issues of law and fact shall be heard and determined by the judge.

At the conclusion of the hearing on the state’s motion to revoke or increase bond, the trial court held petitioner in contempt of court. An order to show cause was not entered, nor was petitioner permitted to file motions or an answer as required by the rule. As stated in Vines v. Vines, 357 So.2d at 245, where the trial court similarly “made no effort whatsoever to comply with the provisions of Fla.R.Crim.P. ... 3.840,” “it is, of course, necessary that a judge follow these rules in all matters involving criminal contempt. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).” Id. at 246. In Pugliese, the Florida Supreme Court held failure to comply with Rule 3.840 violated procedural due process. Id. at 426. In sum, petitioner’s assertion that the order of September 19, 1984, is void for failure to comply with procedural due process is correct.

Respondent’s motion to dismiss the petition for habeas corpus challenges neither petitioner’s statement of the facts of the case nor his allegations that the condition was improper and that he was deprived of procedural due process. Respondent argues only that petitioner failed to comply with certain procedural requirements in filing his petition, specifically:

(1) failure to file an affidavit as required by Section 79.01 of Florida Statutes;
(2) failure to verify the petition;
(3) failure to file an appendix as provided by Rule 9.100(e), Florida Rules of Appellate Procedure;
(4) failure to provide the appellate court with a transcript of the trial court proceedings; and
(5) failure to transmit a copy of the record on appeal to the Attorney General pursuant to Rule 9.140(d), Florida Rules of Appellate Procedure.

Petitioner, in his response to respondent’s motion to dismiss, contends the motion should be stricken as untimely. Both parties’ arguments are without merit. Florida courts, in recognizing the importance of considering the legality of a defendant’s detention, have not required “meticulous observance of the rules of pleading” and will accept even an informal communication as sufficient. Sneed v. Mayo, 66 So.2d 865, 870 (Fla.1953); Ashley v. State, 158 So.2d 530 (Fla. 2d DCA 1963). Also, a transcript of the trial court proceedings is not necessary for appellate review so long as the record in the appellate court is sufficient to allow it to rule. State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973). In the instant case, the facts as set forth in the petition (and not contradicted by respondent) and the order of September 19, 1984, provide a sufficient basis for a ruling by this court.

We therefore grant the petition for writ of habeas corpus and direct that petitioner be released from custody within a short time and upon the posting of reasonable bail, or upon such other reasonable conditions as may be imposed by the trial court.

GRANT THE PETITION FOR WRIT OF HABEAS CORPUS.

DOWNEY and DELL, JJ., concur.


source: Caselaw Access Project

author: CAMPBELL, Judge. RYDER, Chief Judge,

license: Public Domain

text:
    STATE of Florida, Appellant, v. T.L.W., a child, Appellee.
    No. 84-575.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellant.
    Peter D. Ringsmuth of Smith & Rings-muth, Fort Myers, for appellee.
   CAMPBELL, Judge.

Appellant, the State of Florida, contends that the evidence of appellee’s possession of cocaine was improperly suppressed. We agree.

In an oral motion in limine, appellee alleged that because the state consumed all of the suspect drugs during testing, she had been deprived of her sixth amendment right to confrontation of witnesses against her and her right to due process of law under the state and federal constitutions.

At the hearing on appellee’s motion, the forensic chemist testified that at the time she performed the chemical analysis, she believed it was necessary to consume the entire sample to obtain a meaningful scientific result. On cross-examination, at the urging of counsel, she speculated that, with difficulty, she could have scraped a small amount of the suspect drug aside. She went on to say, however, that she was concerned with a qualitative, not a quantitative result.

Appellee’s sixth amendment claim must fail. We reiterate that the confrontation provision of the sixth amendment refers to witnesses and does not encompass physical evidence. Strahorn v. State, 436 So.2d 447, 449 (Fla. 2d DCA 1983), citing State v. Armstrong, 363 So.2d 38, 39 (Fla. 2d DCA 1978). See also State v. Atkins, 369 So.2d 389, 390 (Fla. 2d DCA 1979).

As to appellee’s second argument, we recognize that intentional or negligent destruction of suspect drugs by the state or its agents, constitutes a due process violation. State v. Atkins, 369 So.2d at 390, citing State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979). However, where suspect contraband drugs are unavoidably destroyed or consumed during chemical testing by a state chemist, there is no suppression of evidence entailing a due process violation. Atkins at 390; see also, Stra-horn.

Here, the state chemist believed use of the entire sample was necessary to obtain valid scientific results. The sample was consumed legitimately in the performance of the chemist’s duties. The sample was not negligently destroyed, nor was it destroyed with the intent to deprive appel-lee of an opportunity to perform an independent test. Strahorn.

Accordingly, on the basis of Strahorn, Atkins and Herrera, we hold that the order granting the motion in limine be reversed and the case remanded to the trial court.

GRIMES, J., concurs.

RYDER, C.J., concurs specially with opinion.

RYDER, Chief Judge,

concurring specialty-

Although there is nothing in the record to indicate that the state chemist either intentionally or negligently destroyed the suspected cocaine during testing, she testified that, in fact, she could have saved some of the drug but with difficulty. Although I have no reason to believe that the chemist did not make anything but an honest decision to consume the entire sample during testing, I feel compelled to re-emphasize the teachings of State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979). It is a better practice for the state to preserve a portion of the suspected drug for examination by the defense or to delay testing of small amounts of suspected drugs until a defense representative is given a fair opportunity to be present. Also, by following this procedure, the credibility of the state chemist cannot be successfully attacked at trial for failing to allow examination of the drug by the defendant.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Donald Eugene COUNTS, Appellee.
    No. 83-71.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Gregory M. Wilson of Taylor & Wilson, Orlando, for appellee.
   SHARP, Judge.

The state appeals from an order of the trial court which granted Counts’ motion to suppress the results of a blood alcohol test performed on Counts following a traffic fatality. In this proceeding, Counts was being charged with manslaughter by driving while intoxicated. He argues that because the blood test was taken by a first year resident physician, Moorefield, who had not then registered to become licensed by the State of Florida Board of Medical Examiners, the test was not admissible under section 322.261(2)(b), Florida Statutes (1981). We disagree and reverse.

At the time the blood test was made, section 322.261(2)(b) provided:

Only a physieian, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a peace officer, may withdraw blood for the purpose of determining the alcoholic content therein. Such a withdrawal of blood shall be performed only at a hospital, clinic, or other medical facility. This limitation shall not apply to the taking of a breath specimen.

This section has been construed by. our sister courts as barring the admissibility of blood tests taken pursuant to section 316.-1933(2)(a), Florida Statutes (1983) in criminal prosecutions where the statutory provisions were not met. State v. Roose, 450 So.2d 861 (Fla.3rd DCA 1984); Campbell v. State, 423 So.2d 488 (Fla.1st DCA 1982); Grata v. State, 414 So.2d 621 (Fla.3rd DCA 1982); State v. Demoya, 380 So.2d 505 (Fla.3rd DCA 1980).

However, we think section 322.-261(2)(b) was not violated in this case because the term “physician” encompasses the term “resident.” The term “physician” is not defined in Chapter 322. Falling back on the general meaning of the word, we note that resident is defined by Webster’s New Collegiate Dictionary 977 (1981 ed.) as “a physician serving a residency.”

Counts argues that the proper definition for “physician” as used in Chapter 322 is the one appearing in section 458.-305(4), Florida Statutes (1981): “a person who is licensed to practice medicine in this state.” But that definition is expressly limited to its use “in this chapter,” and clearly Chapter 322 is an entirely different chapter and subject matter.

Chapter 458 deals with the regulation of the practice of medicine in the state, through the mechanism of requiring practitioners to be licensed. That chapter, however, provides for categories of resident physicians who are not required to be licensed, under some circumstances. Section 458.345, Florida Statutes (1981) provides:

Every person practicing as a resident physician ... in this state shall register with the department_ Unless previously authorized by the board, no person may be employed as a house physician or act as a resident physician ... for more than two years without a license, except that resident physicians ... in approved training programs shall be exempt from this limitation....

The record in this case shows that Moorefield was a first year resident at the Orlando Regional Medical Center in orthopedic surgery. He had a medical degree from the Medical University of South Carolina, and he began working as a resident at the medical center on July 1, 1981. At the time he took the blood test on November 1981, he thought he had registered with the Medical Board through the hospital. Shortly thereafter he did register and became licensed.

Whether or not section 458.345 required Moorefield to register as a resident physician, we do not think it made him a non-physician. We note that the legislature used the terms “registered” before nurse and “duly licensed” before the two laboratory technicians in its description of persons who could take the blood tests under Chapter 322. But it did not say, as it could easily have done, “licensed” physician. We decline to read into Chapter 322.-261(2)(b) such an additional legislative requirement.

For the reason stated in this opinion the order appealed suppressing the blood test evidence is

REVERSED.

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

      . Fla.R.App.P. 9.140(c)(1)(B).

      . § 860.01(2), Fla.Stat. (1981). This section is now section 316.1931, Florida Statutes (1983).

      . Section 322.261(2)(b), Florida Statutes (1981), has been amended and is now found under section 316.1933(2)(a), Florida Statutes (1983). Section 316.1933(2)(a), provides:
      Only a physician, registered nurse, or duly licensed clinical laboratory technologist or 457 So.2d — 14 clinical laboratory technician, or a paramedic certified as provided in s. 401.47 who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or the presence of controlled substances therein.

      . § 458.305, Fla.Stat. (1981).


author: COWART, Judge. ORFINGER, Judge,

text:
    Dorion FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1661.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is another sentencing case involving a departure from the sentencing guidelines.

Charged with, and tried for, robbery the jury found appellant guilty of grand theft. Appellant elected to be sentenced under Florida sentencing guidelines, although his offense was committed before the effective date (October 1, 1983), of the sentencing guidelines and appellant was sentenced after that date.

Although weighted by factoring for a prior criminal record of a third degree felony and four or more misdemeanor convictions and for being under legal constraint (probation) at the time of the offense, Form 3.988(f), Category 6, resulted in but 30 points which equates with a recommended guideline sentence of the lowest recommended range, i.e., any non-state prison sanction. The trial judge departed from the recommended guideline sentence and sentenced appellant to state prison for confinement for three years stating in writing the reasons for departure to be that [t]he defendant is apparently a regular street prostitute and in this particular case he used force or threatened force to accomplish this theft.”

We are forced to find that these are not “clear and convincing” lawful reasons for departure from the recommended guideline sentence in this case and to reverse. First, although the trial judge may have properly inferred that appellant is “a regular street prostitute,” the basis for that inference was apparently the facts learned by the trial judge from the trial “relating to the instant offense”, and from appellant’s prior criminal history (one or more of his prior convictions was the basis for appellant’s “legal constraint at time of offense”) and the guideline explicitly prohibits these factors as reasons for a departure sentence, see Florida Rule of Criminal Procedure 3.701 b.6 and d.ll. and The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). Secondly, because appellant was charged with and tried for robbery, the jury’s verdict finding him guilty only of grand larceny constituted an implicit finding that appellant did not accomplish his theft “by force, violence, assault or putting in fear,” the elemental difference between theft and robbery. Constitutionally a defendant should not be punished (sentenced) for conduct of which he has been acquitted. Further, to depart from the recommended guideline sentence in this case on the basis that the defendant used or threatened force in accomplishing the theft for which he was being sentenced would be to consider “factors relating to the instant offenses for which convictions have not been obtained” (Rule 3.701 d.ll. as “revamped” May 8, 1984), a reason for departure expressly prohibited, and would also constitute a “real offense” sentencing. See generally Provence v. State, 337 So.2d 783 (Fla.1976); Owen v. State, 441 So.2d 1111 (Fla. 3d DCA 1983), review denied, 446 So.2d 100 (Fla.1984); Jacobson and Wesley, Florida Sentencing Guidelines, Sentencing Guidelines and Sentencing Advocacy Seminar, The Florida Bar Continuing Legal Education Committee, page 1.13 (1983).

The order imposing appellant’s sentence is reversed, the sentence vacated and the cause remanded for resentencing in accordance with the legislatively approved Florida Rules of Criminal Procedure establishing sentencing guidelines, as interpreted in this opinion.

REVERSED AND REMANDED.

DAUKSCH J., concurs.

ORFINGER, J., dissents with opinion.

ORFINGER, Judge,

dissenting.

The defendant’s prior criminal record is a sufficient basis for a departure from the sentencing guidelines. Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). Additionally, the fact that the instant crime was committed while appellant was on probation was a clear and convincing reason for which the trial court could depart from the guideline sentence. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). I therefore dissent, and would affirm the sentence.

      . See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

      . See State v. Brusven, 327 N.W.2d 591, 593 (Minn.1982). Minnesota uses a guideline sentencing concept.

      . Compare theft (§ 812.014, Fla.Stat.) with robbery (§ 812.13, Fla.Stat.) and see Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1984), but cf., Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983).

        .See generally Schulhofer, Due Process of Sentencing, 128 U.Pa.L.Rev. 733 (1980).

      . The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984).


author: SMITH, Judge.

text:
    Venancia DELGADO, Appellant, v. LaQUINTA MOTOR INNS and Lumbermens Mutual Insurance Company, Appellees.
    No. AV-428.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.

      John A. Leklem of Sparks, Cooper & Leklem, Orlando, for appellant.
    Wendel J. Kiser of Zimmerman, Shuf-field, Kiser & Sutcliffe, Orlando, for appel-lees.
   SMITH, Judge.

Claimant appeals an order of the deputy commissioner issued September 28, 1983, which denied her claim for temporary total disability (TTD) benefits, interest, costs, penalties, and attorney’s fees. We affirm, with modifications spelled out below.

Claimant had previously sustained a com-pensable injury on October 14, 1979, while employed by appellee LaQuinta Motor Inns. Based primarily on the opinion of Dr. Rosenberg, the deputy commissioner, after a hearing involving the same parties to this action, awarded claimant TTD benefits for the period between October 14, 1979, and March 17, 1981 (the date of the order) and beyond “so long as her temporary total disability persisted.” Approximately three weeks later, the employer/carrier (E/C) discontinued TTD benefit payments to claimant. The deputy commissioner’s order was subsequently affirmed without opinion by this court on January 22, 1982. On January 29, 1982, claimant filed her present claim requesting TTD and other benefits for the period from March 17, 1981, continuing.

Claimant, at the E/C’s request, visited Dr. Stanford on March 1, 1982. Dr. Stanford also examined claimant on March 25, 1982. As a result of these examinations, he diagnosed claimant as suffering from a permanent impairment of six percent (6%) of the body as a whole as a result of pre-existing degenerative disc disease. However, Dr. Stanford opined that claimant’s 1979 injury, for which she had previously been granted benefits, did not result in a physical impairment. Claimant was examined again by Dr. Rosenberg, her original treating physician, on July 6, 1982. He found on this examination that she exhibited the same symptomatology as when he first examined her in 1979. Dr. Rosenberg continued to adhere to his original diagnosis of degenerative disc disease with the possibility of bilateral L-5 radiculopa-thy, and stated that until he could rule out bilateral radiculopathy claimant would be unable to work. However, Dr. Rosenberg stated that this diagnosis was tentative, and recommended that claimant undergo a myelogram in order to confirm or deny his alternative bilateral radiculopathy diagnosis. Dr. Rosenberg testified that if the myelogram results were negative there would be a high probability claimant could return to work activities involving moderate exertion.

Claimant was referred to Dr. Montoya for a myelogram. He admitted her to Orlando Regional Medical Center for testing from November 29 until December 6, 1982. Dr. Montoya interpreted the claimant’s my-elogram results as normal and the results of a CAT scan as confirming his initial diagnosis of degenerative disc disease. Dr. Montoya re-examined claimant January 17, 1983, finding normal neurological results indicating that surgery was unnecessary. Accordingly, he discharged claimant as having reached maximum medical improvement (MMI) as of that date, and advised her that she was capable of returning to work in jobs that didn’t require her to lift more than twenty-five (25) pounds or engage in repetitive lifting or bending.

The deputy commissioner in his order denying the claim made the following pertinent findings of fact: First, the claimant had not sought medical treatment for her back problems from March 7, 1980, until March 1, 1982. Second, that claimant reached MMI no later than March 1, 1982. Third, claimant was not entitled to TTD benefits from March 17, 1981, through March 1, 1982, both because claimant had not sought medical attention for her alleged back impairment, and because no medical evidence existed in the record showing her to be TTD during the period. Finally, that claimant was not entitled to the benefits she sought for the period between March 1,1982, and January 17, 1983, because the deputy found claimant had reached MMI by March 1, 1982, and that any disability she suffered at the times in question was related to her pre-existing degenerative disc disease and not her industrial accident of October 14, 1979. Although we find competent, substantial evidence to support certain of these findings, we find certain conclusions reached by the deputy commissioner to be erroneous as a matter of law.

Initially, we dispose of claimant’s contention that she was improperly denied TTD benefits for the entire period between March 1, 1982, and January 17, 1983. Claimant relies primarily upon alleged errors in a number of factual findings made by the deputy, which she contends would, if overturned, entitle her to TTD benefits. Those challenges relating to the credibility of witnesses, for example, her claim that the deputy erred in finding that she had not sought medical attention for almost two years, are properly matters for the deputy commissioner to weigh and decide. McCandless v. M.M. Parrish Construction, 449 So.2d 830, 833 (Fla. 1st DCA 1984). We do, however, find error in that part of the order which denies claimant TTD benefits between March 17, 1981, and March 1, 1982, and between November 29, 1982, and January 17, 1983. We find, contrary to the ruling of the deputy commissioner, that claimant is entitled to TTD benefits during the period when the first order granting benefits (dated March 17, 1981) was on appeal to this court, until March 1, 1982, when Dr. Stanford found upon examination of the claimant that she was not suffering from a compensable, accident-related disability. During this time, the only medical evidence in the record was Dr. Rosenberg’s opinion that claimant was disabled and incapable of returning to work. Since the deputy commissioner’s denial of benefits for this period was predicated in part upon a specific finding that there was no medical evidence of inability to work, it was in error. It is true, as appellees’ claim, that competent, substantial evidence supports the deputy’s finding that claimant had not conducted a work search during this period. However, it is also true that the E/C sought no further medical evaluation of the claimant and refused to supply any further medical treatment while the appeal was being pursued; and the claimant was never advised by Dr. Rosenberg, or anyone else, that she was released to return to work. Since the deputy had previously determined that the claimant was TTD in his first order, so far as the record discloses that condition continued until claimant was re-examined on March 1, 1982. In view of this state of the record, we find no basis for holding that claimant either knew or should have known that she was free to return to work, and hence TTD benefits cannot be denied for this period. Daytona Linen Services and Mission Insurance Company v. Davis, 454 So.2d 46 (Fla. 1st DCA 1984), quoting Fulmer-Orlando v. Taylor, 419 So.2d 734, 735 (Fla. 1st DCA 1982).

The deputy commissioner also committed reversible error when he denied claimant TTD benefits for the time period she was hospitalized, on instructions by Dr. Montoya, in order to undergo myelogram and other testing from November 29, 1982, until December 6, 1982, and during her recuperative period thereafter, up until Dr. Montoya found MMI on January 17, 1983. Rodriguez v. Miami Baking Company, Inc., 430 So.2d 955 (Fla. 1st DCA 1983). This is true even though we accept, as supported by competent, substantial evidence, the deputy’s finding that claimant reached MMI by March 1, 1982, since the claimant is entitled even after MMI to TTD benefits for a period of hospitalization and recuperation following curative procedures necessitated by a compensable injury. Atkins v. Greenhut Construction Co., 447 So.2d 268, 270 (Fla. 1st DCA 1983).

In conclusion, we REVERSE those portions of the order below denying claimant benefits from March 17, 1981, through March 1, 1982, and November 29, 1982, through January 17, 1983, and REMAND for entry of an order modified as noted above. In all other respects, the order appealed from is AFFIRMED.

AFFIRMED as modified; REMANDED with directions.

BOOTH and THOMPSON, JJ., concur.

      . We note that no issue exists here as to the E/C’s liability for medical expenses incurred by claimant in the examination and evaluation of her ongoing medical difficulties subsequent to March 17, 1981, as the E/C has voluntarily accepted liability for those expenses. Cf., Atkins v. Greenhut Construction Company, 447 So.2d at 270.


author: ZEHMER, Judge.

text:
    William M. WADE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AW-401.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.
    William M. Wade, pro se, for appellant.
    Kurt E. Ahrendt, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   ZEHMER, Judge.

William Wade appeals an order denying his petition for writ of mandamus. The only question raised is whether the petition was facially sufficient to require a hearing on the merits. We reverse and remand for further proceedings.

Wade was convicted of sexual battery and is presently serving his sentence of fifteen years in prison. He was charged and tried on a count for- kidnapping in violation of section 787.01, Florida Statutes, and a second count for sexual battery in violation of section 794.011(5). Wade was convicted of the sexual battery count, but acquitted on the kidnapping charge.

In setting Wade’s presumptive parole release date (PPRD), the Florida Parole and Probation Commission (Commission) determined that aggravating circumstances of the offense warranted a release date beyond the calculated matrix time range. The Commission added seventy-two months to the PPRD and listed the following as the aggravating factor:

The offense was committed against a victim known to be particularly vulnerable, to wit: the victim was held against her will in a bus on which the door had been locked and victim was forced to have sexual intercourse.

The Commission’s rule 23-21.10, Florida Administrative Code, prohibits the use of “charges for which a person was acquitted after trial” as an aggravating factor to justify a PPRD beyond the calculated matrix range. Wade’s petition for mandamus alleges these facts and contends that the statement of aggravating circumstances is nothing more than a restatement of the essential elements of statutory kidnapping, of which he had been acquitted. The trial court denied mandamus because “petitioner has failed to allege a factual basis that would entitle him to that relief,” (R. 18).

The Commission seeks to uphold the trial court’s orders, arguing that its explanation does not refer to any abduction or holding of the victim for ransom and that the trapping of the victim in the vehicle is not the equivalent of kidnapping. We do not agree with this argument. The pertinent language of section 787.01 defines kidnapping as “forcibly confining ... another person against his will and without lawful authority, with intent to ... commit or facilitate commission of any felony.” We do not perceive any significant distinction between the statutory definition of kidnapping and the factual reason given by the Commission for aggravating Wade’s PPRD. The trial court erred in denying the petition as facially insufficient.

The Commission complains in its brief that it was never afforded an opportunity in the trial court to respond to the petition. Therefore, the order appealed is reversed; the case is remanded and the trial court directed to order the Commission to show cause why the petition for mandamus should not be granted, and to hold an evi-dentiary hearing thereon should the trial court deem one necessary after the Commission’s response is filed.

REVERSED and REMANDED.

ERVIN, C.J., and MILLS, J., concur.


text:
    CERTIFIED GROCERS and Corporate Group Service, Inc., Appellants, v. Phillip W. HAGEN, Appellee.
    No. AX-265.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.

      Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    Mary Catherine Haupt of Piccin, Atkins, Krehl & Forman, Ocala, for appellee.
   SMITH, Judge.

This appeal raises two interrelated questions: whether claimant’s accident occurred during the course of his employment with appellant Certified Grocers, and if so, whether the deputy commissioner erred in awarding claimant temporary total disability (TTD) benefits from May 11, 1983, and continuing, in view of claimant’s alleged failure to provide the E/C with formal notice of injury, pursuant to Section 440.185, Florida Statutes (1981). Upon examination of the record on appeal and the briefs filed with this court, we find competent, substantial evidence to support the deputy commissioner’s finding that claimant’s injury was the result of an accident arising in the course of his employment. We also find, if claimant’s accident is otherwise compensable, no error in the deputy’s award of TTD benefits.

However, the deputy commissioner failed to specifically rule on the E/C’s notice defense in his initial order, and even after a motion for reconsideration was filed by the E/C, the deputy commissioner issued an amended order which still failed to address the pending notice defense. Therefore, in the present posture of this case, we find it necessary to reverse the order appealed from and remand for a ruling on the E/C’s notice defense. University of Florida v. Green, 395 So.2d 258 (Fla. 1st DCA 1981); Westberry v. Copeland Sausage Company, 389 So.2d 1214 (Fla. 1st DCA 1980).

Since a final determination on this claim cannot be made until after the deputy rules on the pending notice defense, claimant’s petition for attorney’s fees in this court is provisionally granted in accordance with a separate order to be issued concurrently with this opinion. The attorney’s fees sought by claimant shall be payable only in the event the claimant prevails below on remand regarding the E/C’s notice defense, in which case the deputy commissioner’s order shall include the award of attorney’s fees to claimant for this appeal.

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

BOOTH and THOMPSON, JJ., concur.


author: PER CURIAM.

text:
    Peter JUNG, Appellant, v. CITY OF SARASOTA, et al., Appellees.
    No. AY-155.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.

      Alex P. Lancaster, Sarasota, for appellant.
    John J. O’Riorden of Dickinson, O'Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   PER CURIAM.

Claimant appeals an order denying payment of his medical bills. We affirm.

No medical bills or medical reports were introduced into evidence. There was some testimony as to the amount of the bills but it was vague, indefinite and inconclusive. The deputy commissioner’s (deputy) determination that this testimony should be rejected was correct. All doubt and uncertainty as to the amount of the bills could have and should have been removed by introducing the written bills into evidence or at least by clear and unequivocal testimony. American Grinding and Equipment v. Rodman, 411 So.2d 917 (Fla. 1st DCA 1982); Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). The deputy’s order even recites that he reminded counsel for the claimant that neither the medical bills nor medical reports were in evidence and there was no excuse for the failure to introduce them into evidence.

AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    Victoria L. ROBERTS, Appellant, v. Robert ROMAN and Coleen Burnett Roman, Appellees.
    No. 83-2213.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.

      Alex Lancaster, P.A., Sarasota, for appellant.
    David Paul Montgomery of Montgomery & Fryback, Bradenton, for appellees.
   PER CURIAM.

Plaintiff appeals the dismissal of her complaint against defendants for personal injuries incurred in an automobile accident involving a drunken driver to whom defendants allegedly sold alcoholic beverages. We affirm.

Section 768.125, Florida Statutes (1980), imposing liability on one who knowingly sells intoxicating beverages to a person who is “habitually addicted” to such beverages, was not in effect at the time of the sale alleged in the complaint here. See Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984).

Even on the premise that liability in this type of situation could be predicated upon violation of a criminal statute, see Migliore, 448 So.2d at 979, the requisites of the relevant criminal statute here, section 562.50, Florida Statutes (1979), were not met. Section 562.50 states in part:

Any person who shall sell, ... any alcoholic beverage, ..., which produces intoxication, to any person habitually addicted to the use of ... such intoxicating liquors, after having been given written notice by wife, husband, father, mother, sister, brother, child, or nearest relative that said person so addicted is an habitual drunkard and that the use of intoxicating drink ... is working an injury to the person using said liquors, or to the person giving said written notice, shall be guilty of a misdemeanor of the second degree ....

The seller here was not alleged to have been given such notice.

AFFIRMED.

OTT, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


text:
    Connie CORNELIUS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2512.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Under the facts of this case, participation by defendant with her husband in a similar prior criminal act was sufficient to justify admitting evidence of that prior act under the “Williams Rule,” section 90.404(2)(a), Florida Statutes (1983), especially where there was evidence that defendant and her husband both participated in the crime for which defendant was charged. It matters not that defendant was the principal actor in the crime with which she was charged and not the principal actor in the prior criminal act.

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


text:
    Bill T. GOSNELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-988.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant’s first three points in his motion were legally insufficient and were properly denied by the trial court. As to his fourth point, however, appellant alleges that the felony sentencing he received violated a plea bargain in which a felony auto theft charge was to be reduced to a misdemeanor of unauthorized use of a motor vehicle. If this allegation is true, appellant might be entitled to postconviction relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse the trial court’s denial of the above specified allegation in appellant’s motion and remand that portion of the case to the trial court. On remand, the trial court may either again summarily deny the motion, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant’s motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


text:
    Ivy SIMMONS, Appellant, v. TROPICANA PRODUCTS, INC., Appellee.
    No. AV-42, AX-96.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    William A. Post of Post & Gable, Seminole, for appellant.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellee.
   PER CURIAM.

In this workers’ compensation case, the claimant appeals the denial of certain past and future medical bills and the denial of a claim for temporary total disability for the month of July, 1983, and temporary partial disability for the month of August, 1983.

Claimant was injured in a compensable accident on September 3, 1982. The claim for various medical bills was heard on July 21, 1983. This claim was denied. A claim for temporary total disability for July and temporary partial disability for August was heard on November 22, 1983 and denied on the basis that the claim was ripe for adjudication at the July hearing and was subsequently barred. We affirm the denial of all the medical bills claimed. We reverse the denial of the temporary total disability for July and the temporary partial disability for August under the authority of Chisholm v. McCormick, 437 So.2d 699 (Fla. 1st DCA 1983). Given the statutory timetables and notice provisions involved in pursuing a workers’ compensation claim, the disability claims for July and August were not ripe for the July hearing and should not have been barred at the subsequent November hearing. See Sections 440.20(2), 440.20(4), 440.185(10), Florida Statutes (1981), and Rule 8, Workers’ Compensation Rules of Procedure.

The order barring the disability benefits is reversed and the cause remanded for a determination on the merits of the claim for temporary total disability and temporary partial disability for the months of July and August, 1983.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: MILLS, Judge.

text:
    Iris S. GAUSE, Appellant, v. FIRST BANK OF MARIANNA, Appellee.
    No. AZ-88.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    Rehearing Denied Nov. 2, 1984.

      Donald L. Tucker, P.A., Tallahassee, for appellant.
    Charles Wynn, Marianna and Thayer M. Marts, Tallahassee, for appellee.
   MILLS, Judge.

This case is before the court on an appeal from entry of final summary judgment in favor of appellee First Bank of Marianna (Bank). We reverse and remand for trial on both counts of appellant Gause’s counterclaim, abuse of process and malicious prosecution.

Bank was in possession of three notes bearing the purported signature of Gause, the original dated 1975 and two renewal notes, one each in 1976 and 1977. Only the 1977 note was involved below. The note went into default and, in early 1979, Gause was contacted regarding payment thereof. Gause repeatedly denied having signed any of the notes and rejected the Bank’s urging to sign an affidavit to that effect. Despite these denials and indications in the record that the Bank had reason to believe someone other than Gause had signed the note, the Bank filed suit against Gause on the note in February 1980. Gause’s answer to the complaint, eventually amended to include her husband as a defendant, included a counterclaim against Bank for abuse of process. It alleged that Bank was misusing process to obtain funds to which it was not entitled and to obtain various other unwarranted concessions from Gause.

On 25 August 1981, Gause moved for summary judgment against Bank, which was granted on 13 November 1981. Bank did not appeal. On 3 May 1982, Gause moved to amend her counterclaim to add a count in malicious prosecution. The motion was granted, after the court reversed itself on an earlier decision to grant a motion for summary judgment by Bank.

After filing an answer denying the allegations of the counterclaims and asserting certain affirmative defenses, Bank again moved for summary judgment on 17 March 1983, directed only to the abuse of process count. Supporting the motion was certain correspondence between Bank and Gause prior to suit, urging her to sign the aforementioned affidavit, which allegedly refuted the abuse of process claim.

Despite the Bank’s failure in its motion to address the count in malicious prosecution, the hearing on the motion consisted solely of argument on that count, without objection by and with the full cooperation of Gause. Bank’s argument was that it had had probable cause to sue Gause on the note because of: 1) her apparent signature on the note; 2) the fact that cash payments had been made on the note; presumably by Gause, and 3) the advice of its counsel. Gause in turn argued that these facts, purporting to show probable cause, were still disputed. Gause also objected to Bank’s use of the affirmative defense of advice of counsel for the first time at the hearing. At the conclusion of arguments of counsel, the trial judge stated, “I think [they] acted on his (lawyer’s) advice. I’m going to grant their motion for summary judgment as to malice in this ease. I don’t believe that they have it.” The written judgment, entered 9 May 1983 stated “as a matter of law that the acts of [Bank] were without malice” and ordered that the “motion for summary judgment is hereby granted.” After the appeal of this order was dismissed by this court on the ground that the .order was not a final judgment but rather only authorization therefor, Gause v. First Bank of Marianna, 442 So.2d 1062 (Fla. 1st DCA 1983), a “corrective final order” was entered on 20 April 1984 which added this sentence to the first order: “[I]t is ordered ...: that [Gause] take nothing by this action and that [Bank] go hence without day.” This appeal followed.

Gause states three grounds for reversal of the court’s summary judgment order: 1) the order is erroneous on its face because a) malice is not an element of a cause of action in abuse of process; thus, finding no malice does not dispose of that count, and b) malice should not have been determined by the trial court in any case as it is a question of fact to be decided by the jury; 2) the trial court should not have considered or relied on the affirmative defense of advice of counsel as it was not raised in the pleadings, nor supported by the record, but rather raised for the first time by argument of counsel; and 3) there are still disputed issues of material fact remaining for determination, rendering summary judgment inappropriate. We agree on all points.

The court’s specific findings do not dispose of the count in abuse of process. Malice need not be found before liability for this tort can attach. Cline v. Flagler Sales Corp., 207 So.2d 709, 711 (Fla. 3d DCA 1968); Bradley v. Peaden, 347 So.2d 455, 456 (Fla. 1st DCA 1977). Neither does following the advice of counsel negate this cause of action. Advice of counsel is a complete defense to a malicious prosecution action by negating the required elements of probable cause and malice, neither of which are elements of a cause of action in abuse of process. Cline at 711. Abuse of process consists rather of a willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose. Peckins v. Kaye, 443 So.2d 1025, 1026 (Fla. 2d DCA 1983). Therefore, the court’s order does not properly dispose of this count and it still remains for determination.

The elements of a cause of action in malicious prosecution are: 1) the commencement or continuation of an original criminal or civil judicial proceeding; 2) its legal causation by the present defendant against the plaintiff; 3) its bona fide termination in favor of the plaintiff; 4) the absence of probable cause for such a prosecution; 5) the presence of malice; and 6) damages conforming to legal standards resulting to the plaintiff. Johnson v. City of Pompano Beach, 406 So.2d 1257, 1258 (Fla. 4th DCA 1981). This case centers around the issues of Bank’s probable cause to file suit against Gause and whether malice was the motivation for the suit.

The question of probable cause is a mixed one of law and fact. City of Pensacola v. Owens, 369 So.2d 328, 329 (Fla.1979). If the facts alleged to show probable cause are undisputed, the existence of probable cause is one of law for the court. Id. at 329. If, however, these facts are disputed, the question of their existence becomes one for the jury. Glass v. Parrish, 51 So.2d 717, 718 (Fla.1951). Malice becomes a jury question once a lack of probable cause is found. Azrikan v. O’Brien, 173 So.2d 711, 713 (Fla. 3d DCA 1965); Central Florida Machinery v. Williams, 400 So.2d 30, 31-2 (Fla. 2d DCA 1981). Because the court made a finding of no malice herein, we must presume that it found first that Bank had probable cause to sue Gause. This finding would, of course, be inappropriate if the facts alleged to show probable cause are disputed; in that case the existence of those facts must first be found by the jury. City of Pensacola, supra; Glass, supra.

In a motion for summary judgment, it is the movant’s (in this case, Bank’s) burden to show the nonexistence of such material disputed facts; until this burden is met, the non-movant (Gause) has no obligation to prove that such facts exist. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The burden is heavy, since “the evidence in pleadings, depositions, answers to interrogatories, admissions and affidavits must overcome all reasonable inferences which may be drawn in favor of the non-movant.” Guy v. Right, 397 So.2d 402, 403 (Fla. 5th DCA 1981). Summary judgment “should not be granted unless the facts are so crystallized that nothing remains but questions of law_” Green Valley School v. Cowles Florida Broadcasting, Inc., 327 So.2d 810, 817 (Fla. 1st DCA 1976), and if there is “the slightest doubt upon any issue of material fact, then ... summary judgment may not be granted.” Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975).

The Bank did not meet this burden, and therefore the court should not have proceeded to find probable cause. Probable cause is allegedly shown by: 1) a reasonable belief that Gause signed the note; 2) the fact that cash payments (source unrecorded) had been made on the note, presumably by Gause; 3) the fact that renewal notices were sent to Gause’s address in 1976 and 1977, with no objection to the signature’s authenticity; 4) Gause’s refusal to sign an affidavit stating she had not signed the note; and 5) the filing of the suit on advice of counsel.

The record demonstrates that none of these facts are undisputed: 1) a letter from a bank examiner to the Bank reflects that prior to the suit, at least one bank officer believed someone besides Gause had signed the note; further, the suit was continued seven months after the Bank’s own handwriting expert stated that Gause in all likelihood was not the signator; 2) Gause flatly denied making any payments on the note or knowing who did; 3) Gause denied that notices of renewal were ever received by her; and 4) Gause’s contention that not only an affidavit was requested by Bank, but her signature on a renewal note and mortgage to secure it as well.

Finally, it was improper for Bank to raise, or for the court to accept, the affirmative defense of advice of counsel. Affirmative defenses must be raised in the pleadings or they are waived. Rule 1.110(d), Fla.R.Civ.P.; see also Joseph Bucheck v. W.E. Music, 420 So.2d 410, 414-5 (Fla. 1st DCA 1982). Here the defense was raised nowhere in the pleadings or record until counsel’s argument at the hearing. Therefore, it should not have been considered in ruling on the motion.

The summary judgment entered in favor of the Bank is reversed. This cause is remanded for trial on both counts of Gause’s counterclaim, which trial shall address the issues raised by the pleadings.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Nelson CUESTA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1243.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Fackler v. State, 406 So.2d 1174 (Fla. 5th DCA 1981), pet. for rev. dismissed, 413 So.2d 875 (Fla.1982).


text:
    Nathaniel LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-870.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski and Arthur W. Carter, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and William Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The defendant Nathaniel Lane appeals his criminal convictions and sentences entered below for robbery and attempted first degree murder. Two points are raised on appeal. First, it is urged that the trial court erred in denying the defendant’s motion to suppress the victim’s identification of the defendant. Second, it is urged that the trial court erred in restricting the cross-examination of the state’s identification witnesses. We are unpersuaded that these points merit a reversal and affirm.

As to the first point, our review of the record shows that the error, if any, in admitting the complained-of evidence was harmless beyond a reasonable doubt in view of the other overwhelming evidence of guilt presented below. See Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 709-11 (1967); § 924.33, Fla.Stat. (1983). As to the second point, the defendant was precluded from establishing that the victim was selling marijuana just prior to the robbery, and that another eyewitness had previously undergone a mental evaluation with undisclosed results. The trial court did not abuse its discretion in concluding that the minimal relevancy, if any, of this evidence was far outweighed by its prejudicial impact, so as to preclude its admission in evidence. Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Ho Yin Wong v. State, 359 So.2d 460 (Fla.3d DCA), cert. denied, 364 So.2d 886 (Fla.1978).

The judgments of conviction and sentences under review are in all respects

Affirmed.


author: SCHWARTZ, Chief Judge.

text:
    William JENNINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2170.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

The sole point on this appeal from a grand theft conviction claims that the trial court should have mistried the case on the ground that the investigating police officer impermissibly referred to the defendants invocation of his right to silence in the following colloquy during cross-examination by defense counsel:

Q He was very cooperative with you and denied stealing the lady’s jewelry, isn’t that so?
A He did deny taking the jewelry.
I asked him if he [would] come down to the police station and talk to me. He said he didn’t have anything to say.
I don’t know if that’s cooperative.

We conclude that the answer was directly responsive to counsel’s inquiry so that the purported error must be treated as one invited by the defendant about which he therefore may not complain. Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), cert. denied, 317 So.2d 766 (Fla.1975); see Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982).

Affirmed.


text:
    WEST FLAGLER ASSOCIATES, LTD., a Florida limited partnership; Biscayne Kennel Club, Inc., a Florida corporation; et al., Appellants, v. Sandra JACKSON, Appellee.
    No. 83-2995.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.

      Horton, Perse & Ginsberg and William P. Cagney, III, Miami, for appellants.
    Ser, Decardenas, Levine, Busch & Schnepper and Barry A. Stein, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that the evidence presented below was sufficient to sustain a jury verdict for the plaintiff herein. The jury could have reasonably found on this evidence that the defendant failed to maintain its jai alai fronton business premises, a place of amusement where large crowds congregate, in a reasonably safe condition commensurate with the business conducted, which failure was a proximate cause of the plaintiffs injuries. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187, 1189 (Fla.1977); Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720 (1948).

Affirmed.


text:
    Jason CHANNING d/b/a Night Owl Publishers, Appellant, v. COLONIAL PRESS OF MIAMI, INC., a Florida corporation, Appellee.
    No. 84-475.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Arthur M. Garel, Miami, for appellant.
    Richard L. Zapf, Coral Gables, for appel-lee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The purchaser appeals from a summary final judgment on an account stated for the full amount billed for materials printed and delivered by the appellee and accepted by the appellant. We partially reverse for trial on the issue of damages alone on the ground that the appellee failed to demonstrate conclusively that it had not breached express or implied warranties as to the quality of the goods, thus affecting their value pursuant to Section 672.714(2), Florida Statutes (1983).


author: BASKIN, Judge.

text:
    Julio Cesar GRANDA, Appellant, v. Ana GRANDA, Appellee.
    No. 84-517.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Gerald Forman, Miami, for appellant.
    Sheldon R. Rosenthal, Miami, for appel-lee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

In this appeal from a final judgment of dissolution of marriage, the husband challenges the trial court’s “special equity” award to the wife of his one-half interest in the marital condominium.

Although the award to the wife of the husband’s half-interest in the marital home was mislabeled a “special equity,” the record reflects that such provision can be upheld as equitably appropriate under the circumstances despite its mistaken nomenclature. Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981); McCall v. McCall, 386 So.2d 275 (Fla. 2d DCA 1980); see Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Finding that a “reasonable person would take the view adopted by the trial judge,” Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984), we conclude that the trial judge, who was in a better position to determine the demeanor and credibility of the witnesses, did not abuse his discretion, and we affirm the award of the husband’s interest in the marital domicile as an appropriate lump sum alimony award.

Affirmed as modified.


text:
    Raymond LANAHAN, f/u/b/o Prudential Property & Casualty Insurance Company, Appellant, v. Jude LENTINI and John Balfe, Appellees.
    No. 84-531.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.

      Donald F. March and Daniel A. Sorrenti-no, Miami, for appellant.
    Daniel Mones and Frank M. Marks, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The trial court’s order dismissing the instant case is reversed upon a holding that a trial court is precluded “from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute when, as in this case, there is activity of record within one year prior to the dismissal,” American Salvage & Jobbing Co. v. Salomon, 367 So.2d 716, 717 (Fla. 3d DCA 1979); see Rivera v. A.M.I.F., Inc., 417 So.2d 304 (Fla. 3d DCA 1982), and this rule cannot be circumvented under the guise of dismissing the case on the ground that the plaintiff failed to respond to the court’s order requiring it to explain its inaction in the case where such inaction was for a period of less than a year.

Reversed.


text:
    Allen SINGER, Martin Manson, and Factory Outlet South, Inc., a Florida corporation, Appellants, v. Steven KREVOY and Roger Loughney, Appellees.
    No. 84-1272.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.

      Gelber, Glass & Durant and Carlos L. de Zayas, Miami, for appellants.
    Kinder & Entin, Sunrise, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

By this interlocutory appeal, we are asked to review the propriety of a non-final order changing the venue of this cause. We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla. Const.; Fla.R. App.P. 9.130(a)(3)(A).

Our review of the record reveals that the defendants, Steven Krevoy and Roger Loughney, filed an unsworn motion below to change the venue of this cause. No affidavits were attached to the motion and no testimony or evidence was presented to the trial judge on the motion. The law is well-settled that on a motion for change of venue:

“The defendant has the burden of pleading and proving that the venue is improper in a lawsuit, assuming that the plaintiffs complaint does not affirmatively show that the venue is lacking. This burden can only be satisfied by pleading and proving facts before the trial court which will defeat the venue as laid. Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962); Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975).”

Davis v. Dempsey, 343 So.2d 950, 952 (Fla. 3d DCA 1977). The complaint in this case does not affirmatively show that venue is lacking in Dade County under Section 47.-011, Florida Statutes (1983), and the defendant failed to plead or prove any facts which would defeat such venue. Under the established law, the defendant’s motion for change of venue should have been denied.

The order under review is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Ross HANCOCK, individually, Appellant, v. Frank CRIPPEN and Dorothy Crippen, his wife, Appellees.
    No. 84-1704.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.

      Parkhurst & Carlson and Grafton N. Carlson, Fort Lauderdale, for appellant.
    Quinton, Lummus, Dunwody & Adams and Kenneth J. Carusello, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

Hancock is a resident of Volusia County who was joined as a co-defendant with two Florida corporations in a Dade County lawsuit arising out of causes of action which accrued in Broward County. He appeals from an order denying his motion to dismiss for improper venue. We affirm because the appellant did not demonstrate that the co-defendants were not “residents” of Dade County within the meaning of Section 47.051, Florida Statutes (1983). While Hancock’s affidavit stated that each corporation had its “principal place of business” and did business “primarily” in Broward County, it did not negate the significantly different statutory requirement of the existence in Dade County of “an office for the transaction of its customary business.” [e.s.] See Tribune Co. v. Approved Personnel, Inc., 115 So.2d 170 (Fla.lst DCA 1959). Hence, as in Birdsall Shipping, S.A v. Gallardo, 390 So.2d 437 (Fla.3d DCA 1980), the appellant failed to carry his burden of establishing that venue was improper under Section 47.021, Florida Statutes (1983):

Actions against defendants residing in different counties. — Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.

Affirmed.

      . Actions against corporations. — Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.


author: WENTWORTH, Judge.

text:
    McDonald construction corp. & Commercial Risk Management, Inc., Appellants, v. Lawrence DION, Appellee.
    No. AX-182.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.

      A.H. Lane and David J. Williams of Lane, Trohn, Bertrand & Williams, Lake-land, for appellants.
    Richard R. Roach, Jr. of Woods, Murray & Roach, Lakeland, for appellee.
   WENTWORTH, Judge.

The carrier’s contention in this appeal is that wage loss benefits should have been denied for alleged voluntary limitation of income by claimant during a period of full time employment as a restaurant manager, because he did not continue active work search while so employed. We affirm because the record substantiates the deputy’s determination that claimant did not voluntarily limit his income under these circumstances.

The order notes claimant’s diligent, good faith, unsuccessful attempts to obtain more remunerative employment following termination of intermittent carpentry jobs for reasons unrelated to his injury. It finds that the employment accepted by claimant represented his best opportunity compatible with a post-injury condition precluding heavy lifting. In the circumstances recited the deputy could properly conclude that the compensable injury contributed causally to the wage loss in question. § 440.15(3)(b), Florida Statutes. Claimant’s initial burden was accordingly met and, absent any evidence of available alternative employment or other proof of voluntary limitation of income by claimant, the order must be affirmed.

SHIVERS and NIMMONS, JJ., concur.


author: DOWNEY, Judge.

text:
    Mack B. TRAMMELL, Appellant, v. CORAL RIDGE INTERIORS, INC., a Florida corporation, Appellee.
    No. 84-1728.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.

      Michael T. Kranz of Jones & Foster, P.A., West Palm Beach, for appellant.
    Patrick O’Neal of O’Neal, Booth & Wilkes, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee sued appellant in four counts for nonpayment of money allegedly owed under a contract for the sale of merchandise. Service of process was obtained via the long arm statute, Chapter 48, Florida Statutes (1984).

The complaint alleged that plaintiff is a Florida corporation and defendant is a resident of the State of Tennessee. It contains four counts: breach of contract, open account, account stated, and goods sold. Each count is based upon a written contract attached as an exhibit, which states: “Payment for Merchandise: All merchandise is handled on a cash on delivery basis.” The complaint does not allege where delivery is to take place, therefore one cannot determine where payment is to be made. Thus, appellee’s reliance on Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982), for the general rule that payment is due where the creditor resides absent some other designated place is inapplicable. The complaint is simply inadequate for a court to determine where payment was due and thus inadequate to fall within the provisions of section 48.193(l)(g), Florida Statutes (1984).

One further point appellee makes in its brief needs explanation. It is suggested that Risman v. Whittaker, 326 So.2d 213 (Fla. 4th DCA 1976), indicates that personal service on a nonresident per section 48.194 should be more effective than service through the Secretary of State as agent for service of process. Therefore, argues ap-pellee, personal service on Appellant Tram-mell in Tennessee with allegations of breach of contract is sufficient to subject Trammell to the jurisdiction of Florida courts pursuant to section 48.193(l)(g).

We suggest appellee has misread Ris-man. Both service through the Secretary of State pursuant to section 48.161 and personal service outside the state pursuant to section 48.194 are available to a plaintiff seeking to obtain jurisdiction under section 48.193, the long arm statute. However, neither is available absent sufficient allegations to bring the case within the purview of section 48.193.

Since appellee’s allegations are totally deficient in this regard, we are compelled to reverse the order appealed from.

REVERSED.

HERSEY and BARKETT, JJ., concur.


text:
    Edward HUDAK, Appellant, v. STATE of Florida, Appellee.
    No. 83-2212.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.

      John F. Evans and G. Richard Strafer of Zuckerman, Spaeder, Taylor & Evans, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Hudak, a barroom bouncer, was tried by jury and found guilty of battery, contrary to Section 784.03, Florida Statutes (1982), based on an altercation in which the victim received a broken jaw. Hudak appeals. We reverse and remand for a new trial based on these errors:

First, the defense presented evidence of self-defense. Therefore, it was reversible error for the trial court to refuse to give requested instruction No. 3.04(d), Self-defense, Justifiable Use of Non-deadly Force, Florida Standard Jury Instructions in Criminal Cases (1981). See Taylor v. State, 301 So.2d 123 (Fla. 4th DCA 1974).

Second, because the defense presented character witnesses, we find that the trial court again erred when it refused the defense’s request to give an appropriate jury instruction. Sunderland v. United States, 19 F.2d 202 (8th Cir.1927); United States v. Quick, 128 F.2d 832 (3d Cir.1942); United States v. Darland, 626 F.2d 1235 (5th Cir.1980).

Our third and last ground for reversal is the trial court’s exclusion, after a proper predicate was established, of evidence of the victim’s propensity for violence, a fact known by the defendant which allegedly created a substantial apprehension for his own safety. Hager v. State, 439 So.2d 996 (Fla. 4th DCA 1983); Smith v. State, 410 So.2d 579 (Fla. 4th DCA 1982); Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971), cert. denied, 255 So.2d 682 (Fla.1971).

Reversed and remanded for a new trial.

GLICKSTEIN, WALDEN and BARK-ETT, JJ., concur.


author: SCHEB, Judge.

text:
    BALBOA INSURANCE COMPANY, Appellant, v. SHORES OF MADEIRA, INC., a Florida corporation, Michael B. Reeves, Pioneer National Title Insurance Company, Joe Nangle and Ruth Nangle, Appellees.
    No. 84-151.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1984.
    Donald E. Grincewicz and Carroll S. Bar-co, Orlando, for appellant.
    Leslie M. Conklin of Larson, Conklin, Stanley & Probst, P.A., Belleair Bluffs, for Shores of Madeira, Inc., Joe Nangle, and Ruth Nangle.
    Martin Errol Rice, St. Petersburg, for Pioneer National Title Insurance Company.
   SCHEB, Judge.

Appellant Balboa Insurance Company seeks review of a final order dismissing its cause for lack of prosecution.

This litigation commenced in 1978 when Palmetto Pump and Irrigation Company, Inc., filed suit against several defendants, including Balboa, seeking foreclosure of a mechanic’s lien, damages, and other relief. One of the defendants was principal and Balboa was surety on a labor and material payment bond delivered in connection with furnishing plumbing materials and supplies for the Shores of Madeira Condominium. Balboa settled Palmetto Pump’s claim and became assignee of its rights, which it sought to enforce against appellees.

On September 14, 1982, Balboa filed a motion for nonjury trial. Thereafter, between September 16 and 23, three of the appellees moved to dismiss for lack of prosecution. The trial court, however, denied the motions on November 17, 1982.

No further record activity occurred and on November 18, 1983, all appellees moved to dismiss Balboa’s cause of action for lack of prosecution. In response Balboa filed an affidavit confirming that it had filed a motion for nonjury trial in September 1982, when the cause was at issue, and that, despite its motion, the trial court had failed to set the cause for trial. Notwithstanding, on December 21, 1983, the trial court granted appellees’ motions and dismissed the cause for lack of prosecution. This timely appeal by Balboa ensued.

Once a proper notice of trial has been filed, the duty is on the court to set the cause for trial. Thus, Balboa had no duty to take any further affirmative action in order to prevent its cause from being dismissed for lack of prosecution. Mikos v. Sarasota Cattle Co., 453 So.2d 402 (Fla.1984); Yankee Construction Corp. v. Jones-Mahoney Corp., 430 So.2d 973 (Fla. 2d DCA 1983).

Appellees contend that the trial court’s order should be sustained because the custom in the Sixth Judicial Circuit requires that when a cause is submitted for trial, a proposed order setting the case for trial is to be furnished to the judge. We find no merit for this contention, because the duty of scheduling is clearly on the court.

Finally, we note that the record does not reflect that, after filing its motion for trial, appellant Balboa subsequently requested a continuance. This distinguishes the case now before us from the recent opinion of the Third District in Straubel v. Gobayra, 444 So.2d 1022 (Fla. 3d DCA 1984), and our decision in Bogart v. F.B. Condominiums, Inc., 438 So.2d 856 (Fla. 2d DCA 1983), petition for review denied, 449 So.2d 264 (Fla.1984).

The trial court is directed to reinstate appellant’s cause and set the same for non-jury trial at its earliest convenience.

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


author: . OTT, Judge.

text:
    AMERICAN DIVERSIFIED DREDGING, INC., Appellant, v. NAUTILUS CONSTRUCTION CORPORATION, Appellee.
    No. 84-419.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1984.
    John Charles Heekin, Port Charlotte, for appellant.
    David K. Oaks of Rosenthal & Oaks, Punta Gorda, for appellee.
   . OTT, Judge.

We reverse the trial court’s order denying appellant’s motion for attorney’s fees and costs made pursuant to section 713.29, Florida Statutes (1983), Florida’s Mechanics’ Lien Law.

Appellee was hired by General Development Corporation (“GDC”) to perform dredging in a subdivision owned by GDC. Appellee fell behind schedule and, with GDC’s permission, hired appellant and others to assist with the job.

A dispute arose over how much money appellee owed appellant for the work, and appellant filed a claim of lien against the subdivision property. See § 713.04, Fla. Stat. (1983). GDC thereupon filed an inter-pleader action under section 713.27 naming appellant, appellee, and other subcontractors hired by appellee to work on the dredging project. The court ordered GDC to pay all funds it held under its contract with appellee into the registry of the court and declared the subdivision property free of the lien. After trial, the lower court ruled that appellant was entitled to recover from the registry fund the full amount stated in its claim of lien.

Appellant moved for an award of attorney’s fees and costs pursuant to section 713.29, which provides:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

The trial court denied appellant’s motion for the stated reason that appellant was not a “prevailing party” under the statute because the claim of lien had been removed from the land.

Section 713.27, which governs the inter-pleader action, provides:

An owner or other person holding funds for disbursement on an improvement shall have the right to interplead such lienor and any other person having or claiming to have an interest in the real property improved or a contract relating to the improvement thereof, whenever there is a dispute between lienors as to the amounts due or to become due them. If the court decrees the interpleader, it may transfer all claims to the funds held by the plaintiff. In such case the court shall require said fund to be deposited in registry of court, and effective upon such deposit, shall decree the real property to be free of all liens and claims of lien of the parties to the suit.

Clearly, appellant’s claim of lien was not destroyed. By requiring GDC to deposit the disputed funds into the court registry and declaring the subdivision property free of all liens, appellant’s lien was transferred to the registry fund.

Appellee never filed a claim of lien. It asserts that attorney’s fees are available only when the interpleader involves a “dispute between lienors,” a lienor being one who has filed a claim of lien. Appellee ignores the statutory definition of lienor which includes one who “has a lien or prospective lien _” § 713.01(10), Fla. Stat. (1983).

GDC’s interpleader action caused the lien to be transferred to the registry fund. Such action does not deprive appellant of the status of prevailing party for purposes of section 713.29. Appellant succeeded in recovering a judgment for the full amount of its lien. Therefore, it was entitled to a reasonable attorney fee. See, e.g., Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978).

REVERSED.

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


text:
    Marjorie Mae GERRY, Petitioner, v. The Honorable Ernest C. AULLS, Jr., Circuit Judge, Respondent.
    No. 84-573.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.

      Stephen G. Birr, Tavares, for petitioner.
    Jim Smith, Atty. Gen. and Louis F. Hu-bener, Asst. Atty. Gen., Tallahassee, for respondent Honorable Ernest C. Aulls, Jr.
    Robert Q. Williams of Smith & Williams, Tavares, for Dept, of Health and Rehabilitative Services.
    Ellen Irene Hoffenberg, Guardian Ad Li-tem Program, Tallahassee.
   SHARP, Judge.

This petition for issuance of a common law writ of certiorari presents the question of whether the trial court departed from the essential requirements of law in denying Gerry’s motion to require the Department of Health and Rehabilitative Services (HRS) to enter into a performance agreement with the view of her re-obtaining custody of her son. The child had been adjudicated to be a dependent child. We ruled in In Re C.B., 453 So.2d 220 (Fla. 5th DCA 1984), that it was not necessary in a clear case of child abuse or abandonment, for HRS to enter into a performance agreement with a parent prior to instituting permanent commitment proceedings. We think C.B. is controlling in this case. However, because the issues are ones of great public importance, we again certify the following question to the Florida Supreme Court:

WHETHER EITHER A PERFORMANCE AGREEMENT OR A PERFORMANCE PLAN AS PRESCRIBED BY SECTION 409.168 IS A PREREQUISITE TO PERMANENT COMMITMENT PROCEEDINGS PURSUANT TO SECTION 39.41(l)(f)l.a.

PETITION DENIED.

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

      . Fla.R.App.P. 9.030(b)(3).

      . Fla.R.App.P. 9.030(a)(2)(A)(v).


text:
    Freda M. HOYT, Appellant, v. Max A. HOYT, Appellee.
    No. AV-380.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.

      Patria K. Fitzpatrick of Fitzpatrick & Fitzpatrick, Panama City, for appellant.
    Michael C. Overstreet of Staas, Over-street & White, Panama City, for appellee.
   MILLS, Judge.

Freda Hoyt, former wife of Max Hoyt, appeals from an order of the trial court setting out Max’s obligation to pay ownership expenses on the former marital home. Freda contends the trial court erred in not requiring Max to reimburse her for one-half of the mortgage interest payments made by her during her exclusive use and possession of the home. We agree, modify the order, and affirm it as modified.

The parties were divorced in 1975. At that time, Freda was awarded exclusive use and possession of the former marital home during the minority of the children. She was required to pay all ownership expenses, including mortgage payments.

In 1983, the trial court granted Max’s request for partition. The order provided:

Upon the sale of the property, the outstanding mortgage indebtedness shall be first retired. Broker fees, closing charges and all similar obligations shall be next paid. The equity thus established shall then be distributed between Freda M. Hoyt and Max A. Hoyt after adjustments chargeable against Mr. Hoyt’s portion of those proceeds are credited to Mrs. Hoyt for any sums she expended on the property that were an obligation by law of Mr. Hoyt as a tenant in common.

Freda then filed with the trial court a motion for clarification asking the court to declare one-half of the principal and interest portions of the mortgage payments an obligation of Max as a tenant in common. In response, the trial court issued an order requiring Max to pay Freda from his share of the partition proceeds: (1) one-half of the principal paid by Freda during her exclusive possession; (2) one-half of all property taxes paid by Freda during her exclusive possession; (3) one-half of all hazard insurance premiums paid by Freda during her exclusive possession; and (4) one-half of all reasonable maintenance expenses incurred by Freda during her exclusive possession. The order did not require Max to reimburse Freda for any mortgage interest paid by her during her exclusive use and possession of the former marital home.

When a former spouse in exclusive possession of jointly-owned property pays all ownership expenses thereon, that spouse is entitled to a credit against the other former spouse’s share of the proceeds when the property is sold. Kohn v. Kohn, 423 So.2d 575 (Fla. 1st DCA 1982). In addition to property taxes, insurance premiums, maintenance expenses, and mortgage principal payments, such credit also includes mortgage interest payments. Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980); Adkins v. Edwards, 317 So.2d 770 (Fla. 2d DCA 1975); Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968).

We therefore modify the order appealed to include the requirement that Max pay Freda from his share of the partition proceeds one-half of the mortgage interest paid by Freda during her exclusive use and possession of the former marital home.

As modified, the order is AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


author: WIGGINTON, Judge.

text:
    Sandy BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AW-71.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals the trial court’s order accepting his plea of nolo contendere to carrying a concealed firearm. In entering his plea, appellant reserved his right to appeal the denial of his motion to suppress the firearm due to unlawful seizure. We affirm.

At the motion hearing, Deputy Spikes testified that on August 1, 1983, he stopped the vehicle appellant was driving and arrested appellant for willful and wanton reckless driving, fleeing and attempting to elude a deputy, and speeding. The validity of the arrest is not an issue in this appeal. The deputy asked appellant to produce his car registration, at which time appellant opened the glove compartment of his car and the deputy saw a box of what appeared to be .32 caliber shells. The deputy immediately moved appellant away from the ear and had a reserve deputy guard appellant while he searched the car. Under the seat on the driver’s side, he saw a portion of the butt of a gun. He reached in and pulled out a .32 caliber, five-shot revolver that was loaded.

Appellant argues that the search by Deputy Spikes did not fall within a valid exception to the exclusionary rule since the search was not incident to appellant’s arrest because appellant was secured away from the vehicle and no probable cause or exigent circumstances existed. Appellant relies upon this Court’s decision in State v. Skrobacki, 331 So.2d 376 (Fla. 1st DCA 1976), in which this Court determined that a search of an automobile was not justified as an incident to Skrobacki’s arrest since he had been placed in custody by two armed officers and was fifteen feet away from the vehicle. The court further found that the officer’s mere sighting of a box of ammunition and a pistol clip in the glove compartment of that car did not provide probable cause to justify a search for a pistol within the car since it is not unlawful to carry a pistol in an automobile unless it is so located as to be on or about the person and is not securely encased. However, since our ruling in Skrobacki, the United States Supreme Court has handed down its decision in New York v. Belton, 453 U.S. 454,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the court declared:

Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “the area into which an arrestee might reach in order to grab a weapon or evi-dentiary ite[m].” [Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ].... In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

In Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981), following Belton, Judge Danahy for the court declared:

We believe the Supreme Court in the Belton case has foreclosed the option of determining on a case by case basis whether the interior of an automobile is within the scope of a search incident to arrest. We read Belton as establishing a rule applicable to all cases involving the arrest of a recent occupant of an automobile without regard to the facts in the particular case.

In Chapas, as in Belton and in the instant case, the defendant was the recent occupant of an automobile but had been removed from the vehicle and placed under arrest prior to the search of the vehicle and the seizure of the evidence, a rifle. The Chapas court found that the seizure of the rifle was constitutionally permissible as a search incident to arrest. Following Belton and Chapas, we reach the same result in the instant case. See also Savoie v. State, 422 So.2d 308 (Fla.1982); and State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982).

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


text:
    James COTE, Appellant, v. DIXIE INSURANCE COMPANY, a foreign corporation, et al., Appellees.
    No. 84-192.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    H.R. Brennan and Mary Jo Meives of McClure & Associates, P.A., Fort Lauder-dale, for appellant.
    Steven H. Simler of Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellees.
   PER CURIAM.

Reversed and remanded. See Rule 2.060(g), Florida Rules of Judicial Administration.

GLICKSTEIN and HURLEY, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.


author: CAMPBELL, Judge.

text:
    Francisco GARZA, Appellant, v. HENDRY COUNTY, Florida, Appellee.
    No. 84-566.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1984.

      Charles E. Davis of Wooten, Honeywell, Rest & Martinez, Orlando, and L. Edward McClellan, Jr., of McClellan & Vostrejs, P.A., Ocala, for appellant.
    Thomas Corbin of Adams & Corbin, Fort Myers, for appellee.
   CAMPBELL, Judge.

Appellant, Francisco Garza, appeals a directed verdict in favor of appellee, Hendry County. Appellant had sustained injuries in a single vehicle accident which occurred when the car he was driving plunged into a canal. The accident occurred at an intersection of a rural county road where, because of the configuration of the intersection, there is an abrupt jog in the road. Appellant was unable to successfully negotiate the jog in the road and plunged straight ahead into the canal. Appellant’s complaint alleged appellee was liable for his injuries, in that appellee negligently constructed and maintained the intersection and negligently failed to post warning signs or traffic control devices to alert drivers to the jog in the road. There was no evidence that any such signs or devices had ever existed.

Appellee defended on the basis that its actions in connection with the road were planning level activities, mandating the application of sovereign immunity as explained in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

In this case, there was no evidence that appellee had knowledge of any similar accidents at this intersection, nor for that matter, that any similar accidents had in fact occurred. City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), is not applicable since there is no evidence that appel-lee here created a known dangerous condition which was not readily apparent to ap-pellee. This was not a known hazard or trap as existed in Collom. We therefore affirm on the authority of Ingham v. Department of Transportation, 419 So.2d 1081 (Fla.1982); Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); City of Sarasota v. Eppard, 455 So.2d 623 (Fla. 2d DCA 1984); Banta v. Rosier, 399 So.2d 444 (Fla. 5th DCA 1981).

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