author: DOWNEY, Judge.

text:
    Edward August SIMONIN, Appellant, v. H. Bryant SIMS and Florence Corbett Flusser, as Co-personal Representatives of the Estate of Henry Frederick Lenning, Deceased, Appellees.
    No. 83-1760.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Rehearing Denied Oct. 8, 1984.
    Sue Keen, West Palm Beach, for appellant.
    H. Bryant Sims of Winkel & Sims, West Palm Beach, and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for appellees.
   DOWNEY, Judge.

This appeal arises from a final order dismissing all counts of the appellant’s complaint with prejudice. The complaint includes counts for malicious prosecution, abuse of process, false imprisonment, intentional infliction of emotional distress and conversion.

The facts underlying the complaint involve a dispute over the ownership of certain furniture, which the appellant claimed Mr. Lenning gave to him and his wife while they were employed as Lenning’s live-in help, and which the appellant took into his possession when that employment was terminated and they were ordered to leave the residence. The Simonins removed the furnishings from Lenning’s residence during daylight hours and allegedly advised the police department of their claim to the furniture. Thereafter, Lenning filed a criminal complaint against Mr. and Mrs. Simonin for grand theft of the furniture. The Simo-nins were arrested and incarcerated, the furniture was seized, the incident was broadcast on the news, and the Simonins were allegedly shunned as criminals by friends, neighbors and clients. Approximately nine months later the state nolle prossed the charges. Pending civil litigation as to the ownership of the furniture resulted in favor of Lenning on the basis that the Simonins could not prove the furniture was a gift.

Lenning filed a motion to dismiss Mr. Simonin’s complaint for failure to state a cause of action, alleging that it failed to correctly state the fact that a civil action had determined Lenning was the rightful owner of the furniture, and that this determination reinforced the fact that it was the “unlawful taking” of the furniture by the Simonins that “formed the basis of the probable cause” for their arrest. The trial court dismissed Simonin’s complaint with prejudice based upon the conclusion that probable cause existed for the filing of the criminal complaint and, therefore, “one or more necessary elements in each cause of action were not established by a sufficient factual basis.”

The appellant contends that the trial court erred in dismissing the complaint with prejudice on the basis of judicial notice of (1) the prior civil action wherein it was determined that Lenning was the rightful owner of the property, and (2) the contents of the nolle prosse, which recited the state’s reasons (other than lack of probable cause) for the dismissal of the grand theft charge. The appellant submits that the trial court incorrectly considered matters outside the four corners of the complaint and erroneously ruled upon the merits of the cause on the motion to dismiss. See Parkway General Hospital, Inc. v. Allstate Insurance Company, 393 So.2d 1171 (Fla. 3d DCA 1981); Cherry v. Pirrello, 324 So.2d 158 (Fla. 3d DCA 1975); Tiseo v. Arnold, 237 So.2d 21 (Fla. 2d DCA 1970); Crutchfield v. Adams, 152 So.2d 808 (Fla. 1st DCA 1963).

While dismissal of the complaint may have been appropriate for failure to state a cause of action due to certain unsupported allegations, we agree that the complaint should not have been dismissed with prejudice and that the appellant should have been given an opportunity to amend. The complaint need not anticipate affirmative defenses. Lomelo v. Schultz, 422 So.2d 1050 (Fla. 4th DCA 1982). The affirmative defense that probable cause existed should not preclude the possibility of amendment of the appellant’s complaint, especially in light of the liberality afforded in permitting amendments. Fla.R.Civ.P. 1.110(d) (1983); see, e.g., Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th DCA 1978); Weiner v. Lozman and Weinberg, P.A., 340 So.2d 1247 (Fla. 3d DCA 1976).

REVERSED AND REMANDED.

DAUKSCH, JAMES C., and PURDY, H. MARK, Associate Judges, concur.

      . See Cazares v. Church of Scientology ' of Cal., 444 So.2d 442 (Fla. 5th DCA 1983); Rest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968).


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Robert S. KINGSLAND and Barbara C. Kingsland, his wife, and Donald L. Henry and Eleanor C. Henry, his wife, Appellants, v. Gene GODBOLD, etc., Appellee.
    No. 83-1215.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    Rehearing Denied Sept. 28, 1984.
    William N. Asma of Ralph V. Hadley, III, P.A., Winter Garden, for appellants.
    Michael J. Sheahan of Maguire, Voorhis & Wells, P.A., Winter Park, for appellee.
   SHARP, Judge.

The Kingslands and Henrys appeal from a trial court judgment vesting title to a condominium unit claimed by them in ap-pellee, Godbold. Based upon a set of stipulated facts, the trial court found that the Kingslands and Henrys had no provable interest in the unit other than possession. We disagree and reverse.

The facts stipulated to by the parties show that Errol-by-the-Sea, Ltd. (Errol), issued a warranty deed to the Kingslands and Henrys, conveying to each a one-half interest in the unit in fee simple. Subsequently, a second deed was prepared and executed by Errol on September 22, 1980, conveying the identical property to God-bold. Godbold recorded his deed first on September 23, 1980, in Official Records Book 2201 at page 0983. Shortly thereafter, also on September 23, 1980, the Kings-lands and Henrys recorded a copy of their deed in Official Records Book 2201 at pages 1546-59. However, it was stipulated that at the time the Godbold deed was executed and delivered that Godbold had actual knowledge of the existence of the deed to the Kingslands and Henrys.

If the only controlling fact here was who recorded first, Godbold would have priority under our recording statute. However, Godbold’s actual notice of the Kingsland and Henry deed changes this result. As stated by this court in Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982), “[a]n interest created first has superiority over an interest created later from the same source, provided that notice of the first created rights are available to those later acquiring rights in the same land.” Id. at 117. See also Richmond v. Stockton, Whatley, Damn & Co., 430 So.2d 571 (Fla. 3d DCA 1983); Dunn v. Stack, 418 So.2d 345 (Fla. 1st DCA 1982); Ruotal Corporation N. W, Inc. v. Ottati, 391 So.2d 308 (Fla. 4th DCA 1980). Therefore, Godbold took subject to such rights as Kingsland-Henry might have had.

The trial court found, however, that the Kingsland-Henry deed was void for lack of consideration. If this was established, the Godbold deed would prevail. It has long been the view in Florida that “deeds must be founded on a sufficient consideration, or else they are nuda pacta, and nullities.” Southern Life Ins. & Trust Co. v. Cole, 4 Fla. 359, 377 (1852).

The basis for the trial court’s finding that there was no consideration was that no value was established by the exchange of papers between Kingsland-Henry and Errol to justify the conveyance, which was characterized by appellee as a “Chinese paper drill.” However, the trial court failed to recognize that the deed recited a consideration of $10.00. This was not disproved. Even a nominal consideration will support a deed. The sufficiency of consideration is not a relevant basis upon which to void a deed. 19 Fla.Jur.2d, Deeds § 53 (1980).

Because the Kingsland-Henry deed was supported at least by nominal consideration, and Godbold received his deed with notice of the prior Kingsland-Henry deed, the Kingslands and Henrys should have priority over Godbold. The judgment of the trial court is therefore

REVERSED.

DAUKSCH and COWART, JJ., concur.

      . The deed is undated, but it was stipulated that the deed was executed by a general partner of Errol, Richard L. Marks, "sometime in 1974.” An acknowledgment and acceptance was executed on August 1, 1974, as evidenced by the notary acknowledgment.

      . The original deed was held in escrow by the law firm of Hoffman, Henry, Smith and Henderson.

      . Section 695.01(1), Florida Statutes (1983), provides:
      No conveyance, transfer or mortgage or real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity as against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.

      . Godbold also argues that the Kingsland-Henry deed was not delivered. We choose not to address this contention except to hold that the stipulated fact of delivery to the law firm was sufficient to satisfy this requirement. Howarth v. Moreau, 430 So.2d 576, 578 (Fla. 5th DCA 1983); see 8 Thompson, The Modern Law of Real Property, § 4227 (Grimes rev. ed. 1963); 23 Am.Jur.2d, Deeds §§ 131, 139 (1983).

      . Consideration is required to raise a use by bargain and sale, which is then executed by virtue of section 689.09, Florida Statutes (1983). A deed may be set aside for want of consideration. 19 Fla.Jur.2d, Deeds § 44 (1980). See Chase Federal Savings and Loan Assn. v. Schreiber, Case No. 63,017 (Fla. July 26, 1984) [9 F.L.W. 313]; Anders v. Anders, 143 Fla. 721, 197 So. 451 (1940); Silverman v. Silverman, 34 Fla.Supp. 159 (11th Cir.1969).

      . The recitation in the deed raises a presumption thereof, although parol proof may be introduced to rebut that presumption. J.C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981); see also Dunn v. Stack, 418 So.2d 345 (Fla. 1st DCA 1982); Homer v. Dadeland Shopping Center, Inc., 217 So.2d 844 (Fla. 3d DCA), overruled on other grounds, 229 So.2d 834 (1969).


author: BOARDMAN, Acting Chief Judge.

text:
    Wayne A. BRLECIC, Appellant, v. STATE of Florida, Appellee.
    No. 83-2130.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1984.
    Rehearing Denied Oct. 2, 1984.
    Jerry Hill, Public Defender, Bartow, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Wayne A. Brlecic appeals from his convictions and sentences for criminal mischief, first degree burglary, and aggravated assault.

The state filed two separate informations against appellant. In case # 83-761, appellant was charged with criminal mischief, a violation of section 806.13, Florida Statutes (1981). In case # 83-1050, appellant was originally charged in a two-count information with first degree burglary, a violation of section 810.02, Florida Statutes (1981), and aggravated assault, a violation of section 784.021, Florida Statutes (1981). The information in case # 83-1050 was subsequently amended, however, to allege that

WAYNE BRLECIC ... unlawfully and without invitation or license did enter or remain in that certain structure, the dwelling of Ingrid Gause, located at 1711 James Street, New Port Richey, Pasco County, Florida, the property of Ingrid Gause with the intent to commit an offense therein, to-wit [sic]: assault, the said structure at the time not open to the public; contrary to Chapter 810.02(3), Florida Statutes, and against the peace and dignity of the State of Florida.

COUNT TWO

... WAYNE BRLECIC ... did then and there intentionally and unlawfully threaten to do violence to Ingrid Gause while then having the apparent ability to carry out said threat and did create a well-founded fear in Ingrid Gause that such violence was imminent and in the commission of said assault did use a deadly weapon, to-wit [sic]: a knife, the said WAYNE BRLECIC at the time of the said assault not having the intent to kill Ingrid Gause....

Pursuant to a plea agreement, appellant, through his counsel, entered guilty pleas to criminal mischief, first degree burglary, and aggravated assault. It was agreed that appellant would receive thirty years for the burglary and five years each for criminal mischief and aggravated assault, all sentences to run concurrently. During the plea hearing, the trial court specifically asked appellant if he understood that the burglary charge was a first degree felony carrying a possible sentence of life imprisonment, to which appellant responded in the affirmative. In addition, the factual basis established in conjunction with the plea reveals the allegation that appellant committed an assault while in the dwelling. The court also conducted the following colloquy with appellant:

THE COURT: And specifically you do acknowledge that you entered the structure, the dwelling of Ingrid Gause at 1711 James Street, New Port Richey, Pasco County, Florida, you acknowledge that?
THE DEFENDANT: Yes, sir.
THE COURT: Without permission?
THE DEFENDANT: Yes, sir.
THE COURT: How did you get in?
THE DEFENDANT: Through an open door.
THE COURT: You mean, the door was standing open, or it wasn’t locked?
THE DEFENDANT: It wasn’t locked.
THE COURT: So you opened the door?
THE DEFENDANT: Yes, sir.
THE COURT: The front or the backdoor [sic]?
THE DEFENDANT: Front door.
THE COURT: And what did you do once you were inside the property?
THE DEFENDANT: I went inside and tied the girl up.
THE COURT: And you found this girl in her bedroom?
THE DEFENDANT: Yes, sir.
THE COURT: And you used rope that you brought with you to tie her up?
THE DEFENDANT: Yes, sir.
THE COURT: And did you have a knife?
THE DEFENDANT: Yes, sir.
THE COURT: And you did display that knife to her?
THE DEFENDANT: Yes, sir.

The court ultimately sentenced appellant as agreed and recommended that, if released on parole, appellant make full restitution to the victim of the criminal mischief.

On appeal, appellant challenges the sufficiency of the burglary count of the amended information. To convict a defendant of first degree felony burglary, the state must plead and prove not only the essential elements of the burglary as defined in section 810.02(1), but also that, in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon. § 810.02(2), Fla.Stat. (1983). Appellant contends the burglary count only charges a second degree felony burglary as it does not allege that an assault was in fact committed during the course of the burglary and, thus, the count is insufficient to support the thirty-year sentence for a first degree felony. We are aware that the amended information does not contain such an allegation; nevertheless, we affirm appellant’s conviction and sentence for first degree felony burglary.

In Burns v. State, 300 So.2d 317 (Fla. 2d DCA 1974), the defendant was charged under section 811.11, Florida Statutes (1971), with larceny of a calf. He later pled guilty to grand larceny. He alleged on appeal that he could not be adjudicated guilty of a crime with which he was not charged. This court declined to treat the adjudication as void and held that the proceedings, conducted in open court and duly recorded, constituted a mutually agreeable amendment of the accusatory writ.

In Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA) cert. denied, 378 So.2d 348 (Fla.1979), the defendant was charged with battery of a law enforcement officer. The information stated that appellant did “ ‘unlawfully and intentionally touch or strike a law enforcement officer_The defendant pled guilty and was placed on probation. On appeal from the revocation of probation, Shanklin attacked his conviction on the basis that the court originally lacked subject matter jurisdiction to place him on probation. He argued that because the information failed to allege that he “knowingly” struck a law enforcement officer he was never charged with a felony which would give the circuit court jurisdiction.

Relying on Burns, we affirmed Shank-lin’s conviction and held that his plea of guilty to the crime of battery of a law enforcement officer, after the state had properly established a factual basis, constituted a tacit amendment of the information to charge that offense.

We believe the holdings in Burns and Shanklin are applicable in the instant case. The record of the plea hearing reveals that after appellant pled guilty to all the charges, the trial court explained the penalty which could be imposed and developed a complete factual basis for the offense of first-degree burglary. This included appellant’s sworn admission that he did in fact commit an assault during the course of the burglary. Though the amended information itself only charged a burglary of the second degree, all parties involved, including appellant, understood that appellant was pleading to the more serious felony. In view of the diligent efforts undertaken by the court to ensure that appellant understood the consequences of his plea, there is no possibility that appellant could have been misled or prejudiced by the amended charging document. Therefore, we hold that the factual basis given in connection with the plea supplied the missing element of the first degree burglary thereby implicitly amending the information. See also Dean v. State, 414 So.2d 1096 (Fla. 2d DCA 1982), pet. for review denied, 424 So.2d 761 (Fla.1983).

Our holding with respect to the burglary charge requires us to set aside appellant’s conviction and sentence for aggravated assault. The reason being that the aggravated assault is necessary to sustain the conviction for the enhanced burglary and appellant could not be convicted of both the first degree burglary and the assault which formed the basis therefor. McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980); Wicker v. State, 445 So.2d 581 (Fla. 2d DCA 1983). See also State v. Pinder, 375 So.2d 836 (Fla.1979); State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983).

Appellant also contends that the trial court erred in imposing restitution as a condition of parole. We disagree. Although the written sentence for criminal mischief suggests that the court ordered restitution as a condition of appellant’s parole, upon reading the record of the plea hearing it is clear that the court merely recommended such punishment to the parole commission.

The convictions and sentences for first degree burglary and criminal mischief are affirmed. The conviction and sentence for aggravated assault are reversed. The cause is remanded to the trial court with directions to amend the written judgment of case #83-1050 to reflect the correct statutory section number for first degree burglary and to correct the written sentence for criminal mischief to conform to the court’s oral pronouncement that restitution is recommended as a condition of parole.

AFFIRMED in part; REVERSED in part; and REMANDED.

SCHEB and SCHOONOVER, JJ., concur.


author: PER CURIAM.

text:
    SUNSHINE BUILDERS, Appellant, v. Barry TAYLOR, d/b/a Taylor Carpentry Contractors, Appellee, and SUNSHINE BUILDERS OF PALM BEACH, INC., Appellant, v. Joseph TAYLOR, d/b/a Joseph Taylor Electric, Appellee.
    Nos. 83-2498, 83-2499.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 12, 1984.
    Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellants.
    Garry M. Glickman of Glickman & Witters, West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. It was not error for the judge on September 12, 1983 to refuse to enter an order expunging the two appel-lees’ mechanic’s liens from public record. These liens had been filed on January 14, 1981 and the appellees had failed to begin actions to enforce the liens within one year of that date. Thus, these liens had expired by operation of law. §§ 713.21, 713.22(1), Fla.Stat. (1983); Hughey v. Stevmier, Inc., 190 So.2d 410, 414 (Fla. 2d DCA 1966), cert. denied, 195 So.2d 565 (Fla.1966). The Hu-ghey court was specifically ruling on Sections 84.21 and 84.23, Florida Statutes (1961), but these two sections were substantially the same as our current Florida Statute Sections 713.21 and 713.22. Furthermore, since these liens were discharged by operation of law, they do not constitute a cloud on title. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976). Appellant’s remaining points on appeal similarly failed to demonstrate error. Thus we affirm.

DOWNEY and GLICKSTEIN, JJ., and GUNTHER, BOBBY W., Associate Judge, concur.


author: GRIMES, Judge.

text:
    Felix V. PENNINGTON, Westfield Insurance Company and Beatrice N. Dye, Appellants, v. Arlie DYE and Grange Mutual Casualty Company, Appellees.
    No. 83-2212.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.
    William E. Partridge of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants Pennington and Westfield.
    W. Robert Mann of W. Robert Mann, Chartered, Bradenton, for appellant Dye.
    Richard E. Wolverton of Lyle & Skipper, P.A., St. Petersburg, for appellees.
   GRIMES, Judge.

In this appeal we are required to make conflict of laws determinations with respect to the issues of interspousal immunity and contribution among joint tort-feasors.

On December 17, 1981, automobiles driven by Arlie Dye and Felix Pennington were involved in an accident in Manatee County. Beatrice Dye, who was a passenger in her husband’s vehicle, was injured in the accident. The Dyes were returning to Ohio at the time of the accident from their trailer which remains in Florida throughout the year for vacations. Mr. and Mrs. Dye were married in Ohio and are permanent residents of the state. Pennington is also a permanent resident of Ohio. He, too, was returning home from vacation when the accident occurred. Both drivers carried liability insurance policies which had been issued in Ohio by companies authorized to do business in Ohio.

Mrs. Dye filed a negligence action against Pennington and his insurer, West-field Insurance Company, and her husband and his insurer, Grange Mutual Casualty Company. Pennington and Westfield filed a cross-claim against Arlie Dye and Grange Mutual for contribution among joint tort-feasors under section 768.31, Florida Statutes (1981), alleging that Arlie was negligent in causing or contributing to the accident. Arlie Dye and Grange Mutual filed affirmative defenses to the complaint and the cross-claim, alleging that both were barred by the doctrine of interspousal immunity as applied under the laws of the State of Ohio.

The trial court determined that Ohio had a more significant relationship to the parties and the accident than Florida and ruled that Ohio law governed both interspousal immunity and contribution. The court entered judgment on the pleadings for Arlie Dye and Grange Mutual on both the complaint of Beatrice Dye and the cross-claim of Pennington and Westfield.

On appeal Beatrice Dye posits that inter-spousal immunity is waived in Florida to the extent of available insurance coverage and that Florida law should apply because the accident occurred in this state. In also urging the application of Florida law, Pennington and Grange point out that inter-spousal immunity is not a defense to contribution in Florida. There is no dispute that Ohio upholds the doctrine of interspousal immunity, Bonkowsky v. Bonkowsky, 69 Ohio St.2d 152, 431 N.E.2d 998 (1982), and that Ohio does not permit contribution by third parties against the spouse of an injured plaintiff. Moler v. Quality Chevrolet, Inc., 2 Ohio App.3d 120, 440 N.E.2d 1228 (1981).

In years past, the rule of lex loci delicti, or law of the place of the wrong, was invariably applied to issues arising out of tort actions. Recently, in response to frequent criticism of the inflexibility of the rule, a number of courts have modified their approach by employing an analysis of the significant contacts of the parties and circumstances with each state. Case Comment, Conflict of Laws — Torts: Significant Relationships v. Lex Loci Delicti — Florida Enters The Modern World, 33 U.Fla.L.Rev. 436 (1981). In Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980), our supreme court receded from the strict application, of lex loci delicti in a suit arising from a plane crash which occurred in South Carolina. The pilot and all of the passengers were Florida residents who were flying to North Carolina for the weekend. The corporate lessee of the airplane who was joined as a defendant was also a Florida company. The question of whether Florida or South Carolina law controlled was important because of differing standards for recovery by guest passengers in the two states. The supreme court adopted the “significant relationships test” as set forth in the Restatement (Second) of Conflict of Laws §§ 145-146 (1971), which reads:

§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
§ 146. Personal Injuries
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

The supreme court reaffirmed Florida’s adoption of the significant relationships test in State Farm Mutual Automobile Insurance Co. v. Olsen, 406 So.2d 1109 (Fla.1981). There, the court applied Illinois’ law of contributory negligence to determine an uninsured motorist claim arising out of an accident which occurred in Illinois between an uninsured Illinois motorist and a Florida resident who had obtained uninsured motorist coverage in Florida. See also Harris v. Berkowitz, 433 So.2d 613 (Fla. 3d DCA 1983) (measure of damages in wrongful death action determined by Florida rather than Maine law even though the automobile accident occurred in Maine because all the parties involved were Florida residents, the automobile had Florida license tags and was insured in Florida, and the parties were simply spending the summer in Maine); Proprietors Insurance Co. v. Valsecchi, 435 So.2d 290 (Fla. 3d DCA 1983) (question of damages arising out of an airplane crash in North Carolina determined by Florida law because the occupants were temporary Florida residents while attending college, the plane had been rented in Florida from Florida residents who were also defendants, and the flight to New York for Thanksgiving was intended to begin and end in Florida); Krasnosky v. Meredith, 447 So.2d 232 (Fla. 1st DCA 1983) (applied Florida law to determine the standard of care owed to guest passenger injured in a Georgia automobile accident where both parties were Florida residents, the liability policy had been issued in Florida by a company licensed to do business in Florida, and the accident occurred upon a return trip to Florida).

Since Florida now follows the significant relationships test as set forth in the Restatement (Second) of Conflict of Laws (1971), it is appropriate to look to that authority in making a choice of law decision involving the issue of interspousal immunity. Section 169 provides:

§ 169. Intra-Family Immunity
(1) The law selected by application of the rule of § 145 determines whether
/one member of a family is immune from tort liability to another member of the family.
(2) The applicable law will usually be the local law of the state of the parties’ domicil.
Comment:
b. Rationale. An immunity from tort liability is commonly possessed in varying circumstances by one spouse against the other spouse and by a parent against a minor child. Reasons frequently advanced to explain the existence of such immunity are the common law doctrine of the legal identity of the spouses, the desire to foster and preserve marital harmony and parental discipline, and the desire to protect insurance companies from false claims. Whatever the true explanation, the state of the parties’ domicil will almost always be the state of dominant interest, and, if so, its local law should be applied to determine whether there is immunity in the particular case. One possible situation where the state of the parties’ domicil would not be that of dominant interest is where the parties’ relationship to the state of their domicil is considerably less close than is their relationship to some other state.

Under this principle, Ohio clearly has the most significant relationship to the accident and the parties in this case. Fortuitously, all of the parties reside in Ohio and both insurance policies were issued in Ohio. One of the main reasons for the doctrine of interspousal immunity is to preserve marital harmony. The relationship between Mr. and Mrs. Dye, as husband and wife, continues to exist in Ohio. Therefore, the court properly applied Ohio law to bar Beatrice Dye’s claim against her husband. Other courts have reached the same result on essentially similar facts. Schneider v. Schneider, 110 N.H. 70, 260 A.2d 97 (1969); Kjeldsen v. Ballard, 52 Misc.2d 952, 277 N.Y.S.2d 324 (Sup.Ct.1967); McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966).

The question of choosing the appropriate law to determine the validity of the cross-claim is somewhat closer because it involves primarily an issue of contribution among joint tort-feasors. Indeed, it has been reasoned that the doctrine of inter-spousal immunity should not be applied to defeat a claim for contribution because it would do nothing to preserve the family unit. Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977). In Shor v. Paoli, 353 So.2d 825 (Fla.1977), our supreme court held that interspousal immunity did not prevent one tort-feasor from seeking contribution from another tort-feasor when the second tort-feasor was the spouse of the injured person who received damages from the first tort-feasor. The court later reiterated this holding in Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932 (Fla.1980), and pointed out that the existence of insurance coverage was immaterial to the disposition of the question. Therefore, even if Beatrice Dye’s complaint against her husband is barred by interspousal immunity, Pennington and Westfield’s cross-claim for contribution against Arlie Dye is viable under Florida law.

A growing number of courts have held that the issue of contribution should be decided by the law of the state where all of the parties reside rather than by the law of the state where the accident occurred. E.g., Zurzola v. General Motors Corp., 503 F.2d 403 (3d Cir.1974); Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200 (D.Mass.1982); Caterpillar Tractor Co. v. Teledyne Industries, Inc., 53 Cal.App.3d 693, 126 Cal.Rptr. 455 (1975); Chandler v. Northwest Engineering Co., Ill Misc.2d 433, 444 N.Y.S.2d 398 (Sup.Ct.1981). On the choice of law determination of the issue of contribution, Restatement (Second) of Conflict of Laws § 173 (1971) provides:

§ 173. Contribution and Indemnity Among Tortfeasors
The law selected by application of the rule of § 145 determines whether one tortfeasor has a right to contribution or indemnity against another tort-feasor.
Comment:
The determination of the state of the applicable law should be made in the light of the choice-of-law principles stated in § 6. Most cases to date have held that the question of contribution between joint tortfeasors is determined by the local law of the state of conduct and injury. It may be questioned whether such decisions will invariably be followed in the future in view of the growing realization that all issues in tort need not be governed by the same law. The state where conduct and injury occurred will not by reason of these contacts alone be the state that is primarily concerned with the question whether one tortfeasor may obtain contribution against another. The local law of this state will, however, be applied unless some other state has a greater interest in the determination of the particular issue. If both tortfeasors are domiciled in the same state, and particularly, if in addition there is a special relationship between them which is centered in that state, it would seem that, usually at least, this state would have the greatest interest in the issue of contribution and that its local law should be applied.

The only connection which Florida has with the instant case is the situs of the accident. Whether or not contribution will be ordered is a matter which will affect only parties who are residents of Ohio and their Ohio insurers. While the facts of this case do not indicate a “special relationship” between the tort-feasors as referred to in section 173 above, we believe that Ohio rather than Florida has a greater interest in the determination of whether a right of contribution exists. Since Ohio declines to permit contribution between spouses, the court properly dismissed the cross-claim filed by Pennington and Westfield against Arlie Dye and Grange Mutual.

AFFIRMED.

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

      . For this proposition, Mrs. Dye relies upon Tubbs v. Dressier, 419 So.2d 1151 (Fla. 5th DCA 1982), a wrongful death action in which the court held that Florida no longer recognized interspousal immunity to the extent of available liability insurance. However, the supreme court approved only the result of that decision by limiting its scope to actions brought under the Wrongful Death Act, irrespective of insurance. Dressier v. Tubbs, 435 So.2d 792 (Fla.1983). In view of the supreme court’s reaffir-mance of the doctrine in Hill v. Hill, 415 So.2d 20 (Fla.1982), it is by no means clear that inter-spousal immunity has been abrogated in Florida. See Zimmerman v. Nationwide Mutual Insurance Co., 447 So.2d 1019 (Fla. 3d DCA 1984). In any event, in light of the decision we reach in the instant case, the current status of interspousal immunity in Florida is irrelevant.


author: LEHAN, Judge.

text:
    HUDSON FARMS CITRUS & CATTLE, a partnership, Appellant, v. DESOTO COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 84-27.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.
    Rehearing Denied Sept. 28, 1984.
    Phillip J. Jones of Wotitzky, Wotitzky, Wilkins, Frohlich & Jones, Punta Gorda, for appellant.
    Gary Alan Yorbeck of DeVilbiss & Vor-beck, Arcadia, for appellee.
   LEHAN, Judge.

We affirm the trial court’s summary judgment for DeSoto County on its counterclaim asserting ownership of roads under Section 95.361, Florida Statutes (1983).

The county filed its counterclaim on June 4, 1982, claiming ownership of the roads under that statute. Subsection (1) of Section 95.361 provides that

When a road, constructed by a county ... has been maintained or repaired continuously ... for 4 years by the county ..., the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period ....

Subsection (2) of that statute provides that

The filing of a map in the office of the clerk of the circuit court of the county where the road is located showing the lands and reciting on it that the road has vested in the ... county ... in accordance with subsection (1) ... shall be pri-ma facie evidence of ownership of the land by the ... county_

In this case, approximately nine months after the counterclaim was filed, the county filed with the Clerk of the Circuit Court, in accordance with subsection (2) of the statute, a right-of-way map which, consistent with subsection (2), recited that the road had vested in the county in accordance with the statute. A certified copy of that right-of-way map was thereafter attached to the county’s motion for summary judgment. It is our conclusion that the county thereby properly employed the second of the two methods of proof spelled out in Section 95.361 to establish its ownership of the roads and that appellant landowner did not controvert that proof so as to preclude summary judgment for the county.

We recognize appellant’s argument that the filing of the right-of-way map nine months after the county filed its counterclaim was merely prima facie evidence of the county’s maintenance of the roads for four years prior to filing the map, not for four years prior to filing the counterclaim and that, therefore, the county was not entitled to summary judgment. However, subsection (2) does not state that the map is prima facie evidence of maintenance for the preceding four years; the statute makes the map prima facie evidence of ownership. Thus, by submitting the map into evidence in this lawsuit, the county submitted evidence of ownership of the disputed roads, and the burden was on appellant to rebut that prima facie showing of ownership.

One way to rebut would have been to show that, contrary to the recitation on the face of the map, the requirements of subsection (1) had not been complied with to properly vest ownership in the county. However, in opposition to the county’s motion for summary judgment, the landowner filed nothing showing that the county had not constructed and maintained or repaired the road for at least four years prior to the filing of the county’s counterclaim. Therefore, appellant failed to rebut the county’s prima facie showing of ownership.

The landowner also contends that summary judgment was precluded by the existence of a fact issue relative to the width of the road. It is argued that such an issue was created by the landowner’s answers to interrogatories. However, we find nothing in those answers to interrogatories contesting the width of the road as established on the map as having been maintained or repaired by the county for the requisite period. Although those answers to interrogatories make assertions as to an existing 9-foot roadway that the county replaced with a widened shell road and adjacent shoulders, they say nothing as to when the county worked on the road or that the map described more than was actually maintained or repaired.

AFFIRMED.

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


author: ORFINGER, Judge. SHARP, Judge,

text:
    Ronnie Wayne CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 83-24.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Cannon was charged with two counts of armed robbery (Counts I and II); one count of attempted first degree murder (Count III); and one count of aggravated assault (Count IV). He was convicted as charged on Counts I and II (armed robbery) and on Count IV (aggravated assault), and was convicted of attempted aggravated assault on Count III, the attempted murder charge. He appeals his convictions and sentences.

The trial judge imposed fifteen and ten year sentences, respectively, for the armed robbery counts, and consecutive three year mandatory minimum sentences for possession of a firearm for each of the two robbery counts. Cannon argues that the consecutive imposition of the three year mandatory minimum sentence was erroneous. We agree in this case, because the two armed robberies occurred during the same criminal episode. Palmer v. State, 438 So.2d 1 (Fla.1983). The trial judge did not have the benefit of that case at the time of sentencing, however, and so we vacate the robbery sentences and remand for resentencing in light of Palmer.

Cannon also argues that his conviction for aggravated assault (Count IV) should be reversed and a new trial held because the trial judge refused to instruct the jury on simple assault. Cannon was charged in the information with assault on one Eric Olsen with a deadly weapon,

not having any intent to kill, and in the commission of said offense did use and possess a firearm to wit: a revolver.

Because simple assault is listed as a Category I, or a necessarily included offense of aggravated assault in the schedule of lesser included offenses in the Florida Standard Jury Instructions, Cannon urges that it was prejudicial error not to give his requested instruction on simple assault, relying on State v. Abreau, 363 So.2d 1063 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977), and Brown v. State, 206 So.2d 377 (Fla.1968). The judge instructed the jury on attempted aggravated assault, but attempts do not provide a “step” between the greater offense charged and the next lesser one. State v. Bruns, 429 So.2d 307 (Fla.1983).

As a necessarily lesser included offense, the crime of simple assault is one step removed from the greater crime of aggravated assault. Our supreme court has de-dared it to be reversible error for a trial court to refuse to instruct on a lesser included offense one step removed from the crime for which a defendant is convicted. Such instruction is required, so that

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

State v. Abreau, 363 So.2d 1063. The necessity for giving instructions on necessarily lesser included offenses so as to afford the jury the opportunity to exercise its pardon power has been asserted by the supreme court as recently as State v. Baker, 456 So.2d 419 (Fla.1984).

Admittedly, simple assault is a necessarily lesser included offense of aggravated assault. The supreme court has held that the giving of the “attempt” instruction does not satisfy the requirement to charge on the next lower lesser included offense. State v. Bruns, 429 So.2d 307 (Fla.1983). The question then is whether revised Fla.R.Crim.P. 3.510 dispenses with the need to instruct on a necessarily lesser included offense, because, as the dissenting opinion suggests, there appears to be no evidence that the lesser offense was committed. There is nothing in the rule or in the opinion of the supreme court adopting the rule which suggests the view offered by the dissent.

A necessarily lesser included offense is always proved when the higher offense is proved. Put another way, it is necessary to prove the lesser in order to prove the greater. Brown v. State, 206 So.2d 377 (Fla.1968). Thus by definition, there is always evidence of this lesser offense when there is evidence to support the greater. We so held in Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984), where we reversed a conviction for aggravated battery because of the trial court’s refusal to instruct on the necessarily lesser included (one step removed) crime of battery.

In adopting the new schedule of lesser included offenses, the supreme court commented on revised rule 3.510, and indicated that the revised rule would “eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense.” In the Matter of The Use of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.1981) (Emphasis supplied). This view is correctly recognized in Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), where the court observed that

... in any case in which there is sufficient proof of the greater offense to go to the jury there is inescapably proof of a lesser offense which is necessarily included within the offense charged.

Id. at 1291. This principle is also recognized in Gillespie v. State, 440 So.2d 8 (Fla. 1st DCA 1983) where the court interpreted revised rule 3.510 to not require instruction on a lesser included offense “that is not a necessarily lesser included offense of the crime charged.” Id. at 10. But cf, Watson v. State, 439 So.2d 1050 (Fla. 2d DCA 1983).

Because the trial court refused to instruct on a necessarily lesser included offense one step removed from the crime for which defendant was convicted (Count IV, aggravated assault) that conviction is reversed and is remanded for a new trial. Except as to the sentences on the robbery counts for which remand has been ordered, the remaining convictions and sentences are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents in part and concurs in part with opinion.

SHARP, Judge,

concurring in part; dissenting in part.

I agree Palmer v. State, 438 So.2d 1 (Fla.1983) mandates resentencing for the robbery convictions. However, I would affirm his conviction for aggravated assault because it was not reversible error on the trial judge’s part not to give Cannon’s requested instruction on simple assault.

In this ease there was no evidence sufficient to support a conviction for simple assault. Had Cannon been convicted of simple assault, he would have been entitled to ask us to overturn his conviction for lack of evidence. See Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). This is a logical dilemma trial courts and appellate courts should not find themselves in, unless mandated by our supreme court.

The testimony at the trial established that Cannon robbed two women at gunpoint in a commendably alert residential neighborhood. Two men in a passing car stopped and gave chase. A jogger ran after Cannon from a different direction. Olsen, who was backing out of a driveway, also joined in the pursuit. During the chase, Cannon fired twice at his pursuers. Those acts formed the basis for the charge of attempted murder in Count III of the information and for the conviction of aggravated assault.

Olsen heard the shots, but did not see the shooting. He ran to the next block, turned west, and suddenly saw Cannon. Cannon was silently pointing a gun in Olsen’s direction, twenty to thirty yards away. Olsen prudently threw up his hands and jumped behind a wall. This was the factual basis for the charge of aggravated assault in Count IV, and Cannon’s subsequent conviction for attempted aggravated assault.

In hearing the facts of the chase, the trial judge must have concluded that there was either proof of aggravated assault or attempted aggravated assault on Olsen, or no crime at all. Proof of simple assault was lacking here because were it not for the -pointing of the revolver, there existed no factual basis to support a finding that Cannon, “with an apparent ability to do so,” “by word or act,” threatened to do violence to Olsen, thereby creating in Olsen a “well founded fear” that violence was “imminent.” No threats were made verbally, and no gesture was made other than pointing a gun in Olsen’s direction. If Cannon had been closer than twenty-five yards, simple assault might have been established by his pointing at Olsen with a stick, his fist, or his finger. But that was not the scenario here.

This case is similar to Gillespie v. State, 440 So.2d 8 (Fla. 1st DCA 1983), although Gillespie involved a Category II lesser offense. {But see Gillespie, Ervin, J., dissenting). In Gillespie, the defendant was convicted of sexual battery by using a deadly weapon, a knife, held to the victim’s throat. TÍie defense requested an instruction on the lesser included offense of sexual battery with use or threat of force likely to cause serious personal injury. In that case, there was no evidence any force had been used other than the knife at the victim’s throat. The court held that the lesser included offense rule should not have been given because under those facts there was no evidence the lesser offense had been committed.

Gillespie relied on the newly revised Florida Rule of Criminal Procedure 3.510 as not requiring an instruction on the lesser offense. It provides:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.
(b) any offense which as a matter of law is a necessarily included offense of a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence. (Emphasis supplied).

This revised rule was intended to alter the old rule and statute relied on in Brown, which required instruction on lesser included offenses, even where there may not have been evidence to support the charge.

Although some courts have held that the 1981 rule revision did not affect the required instruction rule of Brown for necessarily, or Category I, lesser included offenses, see Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984), I think the phrase “when there is a total lack of evidence of the lesser offense” modifies lesser included offenses in both Categories I and II in the schedule.

Bell v. State, 437 So.2d 1057 (Fla.1983), supports this view. In Bell, the court held that double jeopardy barred the defendant’s convictions for trafficking in controlled substances and sale and possession of the substances, because the latter were necessarily included in the greater offense. Regarding proper instructions the court said:

In a single count indictment or information on a charge of trafficking, a trial judge must instruct on the lesser included offense of sale and possession if evidence exists of these offenses. (Emphasis supplied).

Id. at 1061; see also Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984) (Cowart, J., concurring specially).

      . § 812.13(1), (2)(a), Fla.Stat. (1983).

      . §§ 782.04 and 777.04, Fla.Stat. (1983).

      . §784.021, Fla.Stat. (1983).

      . § 775.087(2), Fla.Stat. (1983).

      . § 784.011, Fla.Stat. (1983).

      . The Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions in Criminal Cases, (1981 ed.); see In Re the Use of Florida Standard Jury Instructions In Criminal Cases, 431 So.2d 594 (Fla.1981).

      . Section 784.011 defines “assault” as an:
      ... intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
      Section 784.021 defines aggravated assault as: (1) ... an assault:

      (a) with a deadly weapon without intent to kill; or
      (b) with an intent to commit a felony. (Emphasis supplied).
      Thus by definition, there must be an assault in order for there to be an aggravated assault.

      .Florida Rule of Criminal Procedure 3.510 provides as follows:
      Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
      (a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.
      (b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence, (emphasis supplied)

      . § 784.011, Fla.Stat. (1983).

      . § 794.011(3), Fla.Stat. (1983).

      . § 794.01 l(4)(b), Fla.Stat. (1983).

      . § 919.16, Fla.Stat. (1969).

        .See The Supreme Court Committee on Standard Jury Instructions in Criminal Cases, flori-da Standard Jury Instructions in Criminal Cases, (1981 ed.).


author: BARFIELD, Judge.

text:
    Larry LAMBERT, as personal representative of the Estate of Vernon J. Lambert and Irene P. Lambert, deceased, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. AT-394.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.
    Charles W. Dodson of Fuller & Johnson, Tallahassee, for appellee.
   BARFIELD, Judge.

Larry Lambert appeals the summary judgment granted to Nationwide Mutual Fire Insurance Company in an action to recover damages under the underinsured motorist provisions of a Nationwide insurance policy issued to Lambert’s parents.

On November 21,1980, Vernon and Irene Lambert were killed in Alabama in an accident involving four vehicles. Their son filed suit in federal court in Alabama, claiming that the accident was caused by the negligence of the other three drivers. A settlement agreement was reached wherein each party contributed to a fund totalling $140,500, of which the Lamberts’ estates received $80,000. Nationwide consented to the settlement. The available insurance coverage from the three alleged tortfeasors in the Alabama action exceeded the underinsured motorist coverage in Lambert’s policy, although the coverage under the Cassidy policy alone was less than the available underinsured motorist coverage in the Lamberts’ policy. Following the settlement, the Alabama action was dismissed with prejudice.

Lambert subsequently filed this action, alleging that only the Cassidy vehicle was at fault in the accident and that the under-insured motorist coverage of the Lambert policy was therefore available to answer for any damages sustained by the Lam-berts that exceeded the settlement obtained in Alabama. The trial judge granted summary judgment for Nationwide, ruling that an “extension” of the holding in Gordon v. Phoenix Insurance Company, 242 So.2d 485 (Fla. 1st DCA 1970), precluded Lambert from proceeding in this action.

The trial court’s reliance on Gordon v. Phoenix Insurance Company, supra, is misplaced. The owner and driver in Gordon were considered joint tortfeasors as a matter of law. The driver was insured; the owner was not insured. A judgment in excess of insurance was entered against the driver. Gordon accepted the limits of insurance and executed a satisfaction of judgment. The court held that the satisfaction of judgment released the uninsured, vicariously liable owner from any liability and that there was therefore no uninsured party from whom the injured party was legally entitled to recover damages. In the case at issue, the liability of the drivers of the three separate vehicles is in dispute. There has been no entry of judgment and no determination of liability; there has been instead a compromise settlement.

Appellant contends that there remains an issue of fact in this case whether either or both of the vehicles other than the Cassidy vehicle were jointly and severally liable for the death of the Lamberts. If that were the only consideration, summary judgment would have been improper. However, the underlying question in this case is whether the court should impose some form of es-toppel on Lambert to prevent him from asserting inconsistent and contradictory positions with respect to the same matter.

The occasions for fashioning a remedy under the label of estoppel in order to prevent injustice are too numerous to count. The concept of estoppel against inconsistent positions in judicial proceedings is certainly not new. Palm Beach County v. Palm Beach Estates, 110 Fla. 77, 148 So. 544 (1933). Although in the Palm Beach County case the court made reference to the party seeking and securing a final order or judgment, it does not appear that such finality is necessary. In United Contractors, Inc. v. United Construction Corporation, 187 So.2d 695 (Fla. 2d DCA 1966), a party was not permitted to maintain pleadings inconsistent with his prior conduct. Other cases speak of a party pleading inconsistently with prior contentions that were “successfully maintained.” Grauer v. Occidental Life Ins. Co. of California, 363 So.2d 583 (Fla. 1st DCA 1978), cert, den., 372 So.2d 468 (Fla.1979). Our examination of Florida law does not reveal a decision directly on point with this case, in which a prior allegation in a legal proceeding set up the opportunity for a party to gain a financial advantage without the finality of a judicial determination. However, the extension of this estop-pel concept, which is more in the nature of a rule of procedure or judicially established policy, is found in other jurisdictions.

In Levi v. Montgomery, 120 N.W.2d 383 (N.D.1963), a minor injured when his employer’s tractor passed over him sued the employer for negligence in failing to properly instruct. The seller of the tractor was joined as a defendant on a theory of negligence in selling defective equipment. Before trial, plaintiff settled with the seller and signed a release. At trial, the jury returned a verdict for the plaintiff, whereupon the employer moved for an order requiring the plaintiff to credit the employer with the amount received from the seller. The court held that where the plaintiff sues two or more defendants in tort and then gives a release to one or more of such defendants, the question at issue between the parties is determined by the pleadings.

Even though the plaintiff now contends that he, in fact, had no cause of action in tort against one of the defendants, the court will consider the issues as framed by the pleadings. Where the plaintiff charges several defendants with tort, and one of the defendants buys its way out of the suit and is given a release and covenant not to sue, the court will not go into the question of liability of such defendant. The test in such case is: Was the defendant sued as a tort-feasor? If so, any liability of the remaining defendants to the plaintiff must be reduced by the amount paid for such release or covenant not to sue by such defendant. The question of actual liability in tort of any of the defendants so discharged by release and covenant not to sue is wholly immaterial. The release and covenant not to sue discharges such defendant from any possible liability for any tort of which such defendant possibly might have been guilty. Whether he was, in fact, guilty of tort is immaterial where such defendant does not desire to try out the question and is willing to pay consideration and in good faith secures such release and covenant not to sue.

120 N.W.2d at 388-389. On petition for rehearing, the court responded to the plaintiffs argument that the court’s holding (that the defendant seller would be deemed a tortfeasor under the circumstances) was inconsistent with prior decisions of the court holding that only formal judicial admissions which waived evidence by the adverse parties would be held conclusive on the pleader:

There is nothing inconsistent in these holdings of the court. Had this case gone to trial, the pleadings would not be conclusive on the plaintiffs. In fact, where a case goes to trial, the plaintiff is entitled to recover on any one of a number of causes, even though some may be inconsistent. But here we have the plaintiffs charging both defendants as tort-feasors in their complaint. Regardless of the merits of the action against it, one of the defendants was willing to buy its way out of a lawsuit. Under these circumstances, the plaintiffs will not be heard thereafter to contend that, although they did sue such defendant in tort, the defendant was not, in fact, liable in tort. The pleadings frame the issues, and the complaint against the defendant implement company, at the time of the release and covenant not to sue, charged it as a tort-feasor.

120 N.W.2d at 390.

In Loomis v. Church, 76 Idaho 87, 277 P.2d 561 (1954), a passenger in an automobile had signed a report of the accident and had verified a complaint wherein it was stated that the driver of the automobile had stopped at a stop sign, and had thereby obtained a settlement in the action against the other vehicle. The court held that the doctrine of estoppel was properly applicable in her subsequent action against the automobile driver under the guest statute, wherein she was attempting to claim that the driver refused to stop at the stop sign. The court noted:

It is quite generally held that where a litigant, by means of such sworn statements, obtains a judgment, advantage or consideration from one party, he will not thereafter, by repudiating such allegations and by means of inconsistent and contrary allegations or testimony, be permitted to obtain a recovery or a right against another party, arising out of the same transaction or subject matter .... The fact that this estoppel was not pleaded would not prevent our consideration of the issue, because the complaint in the former action was admitted without objection by appellant, and her counsel volunteered to stipulate that she received $3,500 in settlement of that action.
This Court, among many others, has held that where evidence of an estoppel is received without objection it becomes an issue in the case and may be acted upon by the court although not pleaded.

277 P.2d at 565.

We hold in this case that when Lambert alleged in the Alabama action the existence of three tortfeasors, including one of Nationwide’s insureds, and upon such allegations successfully secured payment from more parties than he is now claiming are liable, he precluded himself from later taking an inconsistent position in order to seek further recovery from Nationwide.

Since Lambert is precluded from asserting that only the Cassidy vehicle was negligent, no issue of fact remains to be determined and the summary judgment is AFFIRMED.

THOMPSON and NIMMONS, JJ., concur.

      . The insurer for Cassidy, one of the alleged tortfeasors, contributed its policy limits of $50,-000. It should be noted that Cassidy’s insuror was Nationwide, the same insuror against whom recovery is sought in this action.


author: ZEHMER, Judge.

text:
    Claire Delores NEWSOME, Appellant, v. Leslie Leonard NEWSOME, Jr., Appellee.
    No. AW-91.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    William H. Maness, of Maness & Kacher-gus, Jacksonville, for appellant.
    Harry L. Shorstein, Jacksonville, for ap-pellee.
   ZEHMER, Judge.

On this appeal, we review an order denying the former wife’s motion to modify alimony provisions in a final judgment of dissolution of marriage. The issue, simply stated, is whether, as appellee contends, the final judgment provides for lump-sum alimony in the nature of a final property settlement not subject to modification or whether, as appellant contends, the judgment provides periodic alimony for rehabilitative purposes that is subject to extension or modification as to character and amount. We reverse.

The final judgment of dissolution, rendered November 6, 1978, which incorporated the stipulation and agreement of the parties, provided for payment of alimony to the wife in the following language:

The husband shall pay to the wife, as and for alimony the sum of $5,000.00 per year payable at the end of the last pay period of November for each year beginning in November of 1978 and continuing until November of 1983 inclusive or until the wife remarries or dies. In addition the husband shall pay to the wife, as and for alimony, the sum of $100.00 per week beginning on the first Friday following the entry of the Final Judgment of Dissolution of Marriage and continuing until the last Friday in the month of October 1983 or until the wife remarries or dies.

The final judgment, based on the settlement stipulation, also distributed the real and personal property owned by the parties at the time of dissolution, required the husband to assume certain debts, and specifically provided: that the former wife should have custody of the couple’s minor daughter, then age twelve; that the husband would pay child support of $25 per week until the child attains majority or otherwise becomes emancipated; that the husband and wife would share evenly the college expenses of the minor child; that the husband would keep in effect his Veterans Administration life insurance policy and name the wife as irrevocable beneficiary; and that “the Court shall retain jurisdiction to enforce or modify the provisions hereof.”

Appellant’s motion to modify alleged, in general, that the husband’s income had substantially increased; that her income was insufficient to cover her expenses and those of the minor child; that she did not have funds to pay for the minor child’s education, as provided in the final judgment; and that she “has not been rehabilitated,” although she is presently attending Florida Junior College in an effort to obtain a degree. Appellant asked the court to modify the provisions for child support and payment of the child’s college expenses and, further, asked that the alimony payments due to terminate in October and November 1983 be increased in amount and made permanent.

The trial court denied the requested modification, ruling that the evidence did not support the former wife’s claim that the alimony was rehabilitative in character and that she had not shown by competent evidence that she had not rehabilitated herself through no fault of her own. The court declined to modify the parties’ agreement that each would share equally in the child’s college expenses, but ordered an increase in child support to $100 per week. Appellant filed a motion for rehearing, which was denied by the trial court with the following explanation:

The ‘alimony’ provided for the wife by the Stipulation and Final Judgment was uncategorized and the amount and payment thereof is more consistent with lump sum alimony, and the Courts regards (sic) it as such since there was no evidence before the Court at the hearing which would help the Court categorize the same or make a finding that it was rehabilitative in nature.

We hold that the trial court erred as a matter of law in construing the parties’ agreement as incorporated in the final judgment to provide for “lump sum alimony” that is not subject to extension or modification and in refusing to treat the periodic alimony provisions as rehabilitative in nature and purpose. The test for determining whether alimony provisions are non-modifiable lump-sum alimony has been succinctly described in 25 Fla.Jur.2d, Family Law, section 449:

A lump-sum alimony award discharges the payor from further liability for the recipient party’s support. An award of lump-sum alimony vests in the recipient at the time of the final decree of dissolution and is not subject to defeasance or modification. Lump-sum alimony is essentially payment of a definite sum and is in the nature of a final property settlement; hence, an award of lump-sum alimony creates a vested right which survives death and is not terminable on the recipient party’s remarriage.

Accord, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). The provisions of the stipulated agreement and final judgment that alimony payments would continue “until the wife remarries or dies” are completely inconsistent with the notion that the parties intended a final, fixed lump-sum settlement that was not subject to further extension or modification pursuant to section 61.14, Florida Statutes. Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1983). When the husband and wife intend to reach a final and complete settlement of all alimony rights and to forego any further right to modification thereof, such agreement must be specifically expressed by clear language evidencing an intent to waive all such rights in the future. E.g., Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980); Wolfe v. Wolfe, 424 So.2d 32, 34, n. 1 (Fla. 4th DCA 1983); Stephenson v. Stephenson, 408 So.2d 730 (Fla. 1st DCA 1982). Similarly, the provisions of the final judgment whereby the court retained jurisdiction to enforce and modify all provisions of the final judgment (except paragraph 1, dissolving the marriage) is inconsistent with any construction that the alimony award was not subject to subsequent review, extension, and modification by the court. Taken as a whole, the parties’ stipulation and agreement, and the final judgment approving and incorporating that agreement, evidence the parties’ recognition that the wife was, at the time of dissolution, incapable of financially supporting herself and her daughter without help from the husband and that both the husband and wife agreed that the husband should provide such support for a period of five years to enable her to become self-supporting if she could, in fact, do so. The provisions of the agreement that both the husband and wife would share evenly in the cost of the minor child’s college education, which would commence some five years hence, reinforces our construction of the agreement that the parties necessarily contemplated the mother would be fully rehabilitated and financially independent by that time if she was to be able to pay these expenses.

We are aware that decisions extending rehabilitative alimony may speak in terms of a “plan of rehabilitation.” We are not, however, aware of any decision — nor have the parties cited us to any — that requires such “plan of rehabilitation” to be expressly stated and agreed upon orally or in writing. We agree with appellant that it is not the “plan,” per se, but the totality of all the circumstances existing at the time of entry of the final judgment and the contemplations of the parties as evidenced by their agreement that determines whether the periodic alimony is for rehabilitation purposes or is a final lump-sum distribution not subject to modification. We have no doubt that the alimony agreed to in this case, as approved by the court in its final judgment, was periodic alimony for support for the wife until, as contemplated by the parties, she became able to support herself and, further, that such alimony provision would be subject to extension or modification under the court’s reservation of jurisdiction. Since the trial court has not properly applied the correct rule of law to the facts of this case, it is necessary to reverse and remand for further consideration of the petition for modification.

Whether the periodic alimony should be temporarily extended or changed to permanent alimony is, of course, a matter of discretion to be exercised within parameters recognized in prior appellate decisions. For example, in O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982), the court reversed the denial of the wife’s petition for modification to change an award of rehabilitative alimony to permanent alimony, stating in part:

The court below denied the petition for modification holding that the wife had the burden of showing a ‘change in circumstances.’ Because the wife did not appeal the final judgment, the court was precluded from examining any of the factors which would have entitled her to permanent alimony at the time of the dissolution. In the final judgment, the trial court did not enunciate or describe the standard of self-support it anticipated for the wife as a goal of her rehabilitation. To determine that level, then, the court below had to have a point of reference in assessing the extent of rehabilitation. That point can only be determined by examining what would have been a reasonable goal at the time of the divorce. The fact that the wife would have been, under the evidence upon which the final judgment was based, a proper subject for permanent alimony should be properly considered at the time a modification of rehabilitative alimony to permanent alimony is considered. A wife should not have to waste her assets and those of her husband by pursuing an appeal of a rehabilitative award when she is willing to make a good faith effort to achieve rehabilitation and become self-supporting. We think that a rule favoring good faith cooperation toward achieving rehabilitation and self-support is preferable to a rule which requires one to appeal now or lose all future right to assistance.
We conclude that it was error for the court below to consider only the ‘change in circumstances’ test. The court should have considered the trial court’s objectives for rehabilitation and whether appellant achieved those objectives. It should also have considered whether there is a reasonable likelihood that the wife can maintain that ability of self-support in view of her age and foreseeable physical condition. Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980). It would be manifestly unjust to deprive the wife of all prospect of assistance at a precarious time in her life, when at the same time the husband’s security is assured.

410 So.2d at 1371-72. See also, Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1983).

The record before us indicates that the wife is probably entitled to some relief. We do not decide that question, however, because the initial determination of the extent and character of relief to be granted rests in the sound discretion of the trial court upon application of the correct rule of law. The trial court, not the appellate court, should initially determine the relief to be granted, particularly where, as here, the trial court did not have before it, and thus did not weigh, all facts relevant and material to the proper resolution of appellant’s modification claim.

The order denying modification is reversed, and this case is remanded for further proceedings consistent with this opinion. In the interest of justice, the parties shall be afforded an opportunity to further amend the pleadings and to adduce additional evidence in support thereof if they so desire.

REVERSED and REMANDED.

SHIVERS & THOMPSON, JJ., concur.

      . Neither party questions the validity of this increase.

      . Appellant’s motion for rehearing set forth additional facts relevant to the trial court’s reasons for denying modification but the motion was denied, and the related facts, while relevant to the ultimate determination of this question, were not properly before the court.


text:
    Douglas ISOM, Appellant, v. R.L. DUGGER, Appellee.
    No. AZ-396.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1984.
    Douglas Isom, pro se.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


author: SHIVERS, Judge.

text:
    Elizabeth McKENNEY, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY and General Adjustment Bureau, Appellees.
    No. AT-297.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.

      Timothy H. Kenney, of Kenney, Boswell & Kaufman, West Palm Beach, for appellant.
    John Neil Buso, of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, claimant appeals that portion of the deputy commissioner’s order which denies her permanent disability benefits. The employer/carrier cross-appeal the deputy’s award of temporary total disability benefits to claimant. We affirm the award of temporary total disability benefits and reverse and remand as to the permanent disability benefits.

The facts preceding the prior appeal of this case are set forth in McKenney v. School Board of Palm Beach County, 408 So.2d 655 (Fla. 1st DCA 1981). Briefly summarized, they are that claimant suffered a compensable accident on June 4, 1977. By order dated October 5, 1978, claimant was found to have reached maximum medical improvement on September 21, 1977, with no permanent disability. Claimant thereafter filed a petition for modification. On November 25, 1980, claimant’s petition was granted and claimant was awarded temporary total disability benefits for the period of July 3, 1979, through January 8, 1980, and was found to have a 35% permanent partial psychological disability. On appeal, this court reversed the award of permanent partial disability benefits and affirmed the unappealed award of temporary total disability benefits, specifically finding sufficient evidence to support this latter award. This decision was released on December 29,1981, rehearing was denied on February 5, 1982, and mandate was issued on February 23, 1982.

The facts surrounding the present appeal are that on December 30, 1981, claimant filed claim for temporary total disability benefits for the period of January 23, 1981, forward. On April 8, 1982, claimant filed a formally labeled petition for modification, again claiming temporary total disability benefits from January 23, 1981, forward, and, in addition, permanent disability benefits, determination of maximum medical improvement, rehabilitation, and medical benefits. Hearing was held on these matters on February 21, 1983.

At the February 21 hearing, the employer/carrier defended on the basis that there was no change in claimant’s condition, that there had been no mistake of fact in the prior order, that claimant did not have a continuing disability, and that claimant did not have a disability related to the industrial accident. Claimant introduced medical, and her own testimony, that her physical condition had progressively deteriorated since the last hearing. Claimant also introduced medical testimony that there were positive findings of an increase in insertional activity in the right paraspinal muscles in claimant’s lower back. This condition had not previously shown up on electro-myograms conducted on claimant. Finally, claimant introduced medical testimony that she was 100% functionally disabled and that she would not be able to perform light work on an uninterrupted basis.

After this hearing, the deputy entered an order which noted that although jurisdiction on claimant’s petition for modification was not raised by the employer/carrier, it was obscure and should be explained. Hearing was held on this jurisdictional issue on March 31, 1983. On May 18, 1983, the deputy entered the order on review.

In his order, the deputy found: (i) that he did not have jurisdiction to again review by petition for modification a third attempt by claimant to obtain permanent disability benefits; (ii) that the petition for modification filed April 8, 1982, was untimely, since the last payment of temporary total disability compensation, including interest, paid under the November 1980 order, was made on February 26, 1980; and (iii) that the December 30, 1981, claim for temporary total disability benefits constituted a petition for modification, and even though claimant was precluded from reclaiming permanent disability benefits, claimant was in a proper posture to litigate temporary disability benefits. The deputy found that claimant had demonstrated a material change for the worse and a continuation of temporary disability and, therefore, awarded claimant temporary total disability benefits for the period of January 23, 1981, to March 26, 1982.

First, we disagree with the deputy’s finding that as a consequence of the previous denials of permanency benefits, claimant was foreclosed from requesting permanency benefits a third time. Absent from section 440.28, Florida Statutes, is any language which limits the number of times that a party in interest, or the deputy on his or her own volition, may modify a prior order, so long as the modification is timely.

Next, we disagree with the deputy’s finding that claimant did not file a timely petition for modification as relates to claimant’s request for permanency benefits. Here, claimant filed a claim for temporary total disability benefits on December 30, 1981, well within the two year period mandated by section 440.28. Necessarily, this claim sought a modification of the deputy’s prior order, since only by modifying the November of 1980 order could claimant be entitled to the benefits requested. See Washington v. Dade County School Board, IRC Order 2-3694 (1979); Sauls v. Fred Howland, Inc., 5 FCR 48 (1962) (the Florida Industrial Commission noting that there is no provision under the workmen’s compensation law other than section 440.28 for a deputy to take jurisdiction and award additional workmen’s compensation benefits where a prior order determining the merits in the cause has been entered by a deputy commissioner). This court has previously held that a claimant’s letter requesting “a new hearing on my compensation case” was a sufficient claim to toll the statute of limitations until an amended claim was filed. Jenkins Electric v. Mayes, 393 So.2d 44 (Fla. 1st DCA 1981) (we take notice of the contents of the claimant’s letter in Jenkins, see Department of Legal Affairs v. District Court of Appeal, 5th District, 434 So.2d 310, 313 (Fla.1983)). Similarly, we find and hold that claimant’s claim for temporary total disability benefits filed December 30, 1981, was a sufficient petition for modification to toll the statute of limitations until claimant’s formally labeled petition for modification was filed specifically delineating all the benefits, in-eluding permanency benefits, requested by claimant.

Moreover, we note that the employer/carrier did not argue that claimant had not filed a timely petition for modification as relates to permanency benefits until the deputy, sua sponte, after the initial hearing, raised this issue. This court has stated in Bishop v. Pinellas Framing & Finishing, 414 So.2d 596 (Fla. 1st DCA), petition for review dismissed, 419 So.2d 1195 (Fla.1982):

Relief should not be denied because the petition [for modification] is mislabeled as a claim or does not take a given form. If it is clear from either the petition, or the evidence adduced at the hearing, that the claim for additional benefits is the proper subject for a modification hearing, and the employer/carrier is [sic] not prejudiced by the mislabeling, the deputy should upon his own initiative treat the hearing as one for modification.

Id. at 597. Here, the parties and the deputy conducted the February 21, 1983, hearing without mention that the claimant could not proceed on her claim for permanency benefits pursuant to her petition for modification. The employer/carrier defended against claimant’s petition for modification on the grounds mentioned above. No defense was raised by the employer/carrier prior to or during the February 21 hearing, held some ten months after claimant filed her formal petition for modification on April 8,1982, and some fourteen months after claimant filed claim for temporary total disability benefits, that the deputy lacked jurisdiction to consider claimant’s claim for permanency benefits. Under these circumstances, we cannot see how the employer/carrier were prejudiced by the mislabeling of claimant’s petition for modification as a claim for temporary total disability benefits.

Addressing the merits of claimant’s petition for modification, we find competent, substantial evidence to support the deputy’s finding that claimant demonstrated a material change for the worse and a continuation of temporary total disability. In this case, the medical testimony and the testimony of claimant provide sufficient evidence to support a finding of a change in condition and that claimant was temporarily totally disabled. See General Electric Company v. Osborne, 394 So.2d 1089 (Fla. 1st DCA 1981); cf. Walter Glades Condominium v. Morris, 393 So.2d 664, 665 (Fla. 1st DCA 1981). Accordingly, this portion of the deputy’s order awarding temporary total disability benefits is affirmed.

We reverse and remand for determination by the deputy whether claimant is entitled to permanent disability benefits. Evidence was introduced on this point; however, due to the deputy’s finding on jurisdiction, the merits of this issue was not addressed.

Accordingly, the deputy’s order is affirmed as to the award of temporary total disability benefits and the cause is reversed and remanded for determination by the deputy as to claimant’s entitlement to permanent disability benefits.

AFFIRMED in part, REVERSED in part, and REMANDED.

JOANOS and THOMPSON, JJ., concur.

      . The employer/carrier voluntarily paid claimant temporary total disability benefits beginning July 3, 1979, until November 18, 1980. The February 26, 1980, date represents the last payment by the employer/carrier of temporary total disability compensation which was due for the period ending January 8, 1980.

      . Contrary to the employer/carrier’s argument, we find that the November 25, 1980, order awarding temporary total disability benefits, in part, which award was affirmed on appeal, was payment of compensation pursuant to any compensation order within the meaning of section 440.28. We therefore find this case distinguishable from Dean v. McLeod, 270 So.2d 726 (Fla. 1972), cited by the employer/carrier, Dean holding that a petition for modification which is denied cannot act to toll the limitations period for subsequent petitions for modification. Here, however, the November 25, 1980, order awarded compensation, albeit compensation previously voluntarily paid by the employer/carrier, and this order was affirmed, in part, on appeal. We therefore find that claimant's petition for modification was timely filed.
      We disagree with claimant's argument that the statute of limitations was tolled during the pendency of claimant’s prior appeal. See Me-nella & Associates, Inc. v. Roberts, IRC Order 2-3247 (1977), cert, denied, 357 So.2d 187 (Fla. 1978).


text:
    The STATE of Florida, Petitioner, v. Jerry BROWN, Respondent.
    No. 83-2663.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 16, 1984.

      Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for respondent.
    Before NESBITT, BASKIN and DAN-' IEL S. PEARSON, JJ.
   PER CURIAM.

The State’s petition for writ of certiorari asks us to quash an order of the trial court which disqualified the office of the State Attorney from further participation in the prosecution of Brown for armed robbery. Brown successfully contended below that because an Assistant State Attorney, one Dennis Nowak, was to be a witness for the prosecution, all other members of the State Attorney’s office are disqualified from prosecuting Brown, and such task must necessarily be assigned to a special prosecutor who has no affiliation with the State Attorney’s office.

For the reasons set forth in the substantially identical case of Clausell v. State, 455 So.2d 1050 (Fla. 3d DCA 1984) (en banc), we deny the petition for writ of certiorari.

Certiorari denied.


author: BASKIN, Judge.

text:
    Daniel KACSIR, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Pacific Intermountain Express Company, Appellees.
    No. 83-2777.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Daniel Kacsir, in pro. per.
    John D. Maher, Tallahassee, for appel-lees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Daniel Kacsir appeals an order of the Unemployment Appeals Commission which affirmed the decision of the appeals referee finding Kacsir ineligible to receive unemployment benefits from May 4, 1983, the date of his resignation, to July 12,1983, the date of a company merger. On appeal, Kacsir asserts that he quit his job for good cause: the company substantially reduced his pay and misrepresented the duration of his position. § 443.101(l)(a), Fla.Stat. (1981).

A reviewing court may not overturn a hearing officer’s findings of fact when those findings are supported by competent, substantial record evidence. See Fort Myers Pump & Supply, Inc. v. Florida Department of Labor & Employment Security, Division of Employment Security, 373 So.2d 429 (Fla. 2d DCA 1979). In this case, the record supports the hearing officer’s findings that Kacsir could have continued to work from May 4, 1983, to July 12, 1983. In his original appeal of the claims adjuster’s decision, Kacsir listed six “company” reasons and four “personal” reasons for quitting. A transcript of the telephone hearing conducted by the appeals referee reveals that Ed Aumer, Kacsir’s employment supervisor, testified that Kac-sir told him he wanted to return to the midwest in April, rather than in July, because the employment opportunities were greater in April. Kacsir admitted that this was a factor in his resignation. Thus, the hearing officer could have concluded that Kacsir resigned for reasons other than those advanced in this appeal.

Conflicts in the testimony presented questions of credibility to be determined by the fact-finder, here the appeals referee. See Florida State Board of Dental Examiners v. Feinglass, 166 So.2d 686 (Fla. 3d DCA), cert. dismissed, 168 So.2d 146 (Fla.1964). Finding that the order appealed is supported by competent, substantial evidence, we affirm.

Affirmed.


author: GLICKSTEIN, Judge.

text:
    Willie Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1208.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearings Denied Oct. 17, 1984.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with a variety of criminal offenses; and the jury ultimately found him guilty of (a) lesser offenses included in each of three of the counts and (b) two counts of possession of a concealed firearm. Appellant was sentenced to concurrent prison terms of one year on the three lesser included offenses and five years on one of the concealed firearm counts. We affirm except as to the judgment for the second concealed firearm count, which we reverse.

Two issues raised by appellant merit discussion. The first is whether it was error for the trial court to allow the investigating officers to testify, over appellant’s objection on the ground of hearsay, as to the content of the dispatch to which they responded. We hold that it was not. The second is whether it was error to adjudicate appellant guilty of two counts of possession of a concealed firearm in light of the facts of this case. We hold that it was.

As for the first issue, the officers’ testimony as to the contents of the dispatch was allowed to establish that the statements were made, not that they were true. It is a common sense way to explain why the officers were at the particular place at the particular time, their purpose in being there and what they did as a result. We hope this will eliminate any practice, should it exist, of excluding similar testimony in future cases, as jurors have the right to expect to hear a logical sequence, which begins at the beginning.

We are not inventing such principle, although we would not hesitate to be the first to express it. In United States v. Walling, 486 F.2d 229, 234 (9th Cir.1973), the court said:

With respect to the temporary detention issue, Walling contends at the outset that the district court erred in allowing Fisher, at a pretrial suppression hearing, to testify to the information Swink had communicated to him, instead of requiring Swink to testify directly as to his own observations. This preliminary point is without merit. The purpose of offering Swink’s extrajudicial statements through Fisher was not to prove the truth of that which Swink had observed, but to demonstrate those circumstances which served as a foundation for Fisher’s own observations and actions immediately prior to and during the detention of the Cadillac. Thus, Fisher was not communicating to the jury the substance of that which was reported to him by Swink. Rather he was merely furnishing the basis in fact for those circumstances (which facts were derived from a highly reliable source, Swink) which resulted in an investigative lead. These relayed facts prompted him and his companion to cruise up Wildcat Canyon Road, and, ultimately, compelled him to pull over the Cadillac for a limited investigatory inquiry into the presence of its occupants at that time and place, and their relationship, if any, to the earlier unusual chain of events observed by Swink. Accordingly, there was no error in allowing him to so testify in this fashion. See Davis v. United States, 411 F.2d 1126, 1127-1128'(5th Cir., 1969); United States v. Campbell, 466 F.2d 529, 531 (9th Cir., 1972), cert. denied 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972); see also Busby v. United States, 296 F.2d 328, 332 (9th Cir., 1961).

With respect to the second issue, we agree with appellant’s contention that only a single crime occurs when a person at a given time carries more than one concealed firearm, and with the holding in Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983). There the court held that it was improper to convict a prison inmate of two counts of introducing into, or possessing a contraband weapon in, the prisión, in violation of section 944.47(l)(a), Florida Statutes (1981), for having had, at the same time and place, two prison-made knives. Ultimately, the Watts opinion relies on the criterion of chronological and spatial relationships applied in Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981), albeit with the caveat that preferably the legislature should make its purpose clear by the language it uses in the statutes so the prosecutors and courts would not need to infer. The effect of applying this criterion to the present case is that because appellant carried two concealed firearms at the same time and essentially in the same place, he was open to only one judgment on the offense of violating the concealed firearm statute.

HERSEY and DELL, JJ., concur.

      . No sentence was imposed on the second of the concealed firearm counts.