author: PER CURIAM. NIMMONS, Judge,

text:
    Terry BARTER, Appellant, v. ZAYRE CORPORATION and American Mutual Insurance Company, Appellees.
    No. AR-291.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    Richard J. Desanto, Fort Lauderdale, for appellant.
    Eugene N. Betts, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal by a workers’ compensation claimant from an order denying her claim for temporary total disability (TTD) from August 1981 to March 1982. We reverse and remand because, under the circumstances noted below, the order is improperly based on a consulting physician’s opinion that claimant was not disabled because she did not have “objective” signs of abnormality at the inception of the period when benefits were suspended. The record shows no further provision for medical care until surgical intervention was obtained by claimant independently, and disability benefits were then reinstated.

Claimant, a 38 year old woman, suffered a back injury on February 15, 1981, while attempting to lift a 110 lb. box at work. She was treated by Dr. LeStrange, an orthopedic surgeon, during February and March, 1981. Dr. LeStrange admitted her to the hospital for therapy and a myelo-gram. The myelogram indicated a disc bulge which LeStrange thought could be related to the industrial accident. She continued therapy after discharge from the hospital, and was referred by Dr. LeS-trange to Dr. Todd, a neurologist, who hospitalized her in June, 1981, for another myelogram, which was negative. A June 4, 1981, progress note of Dr. Todd prescribed:

... intensive physical therapy and exercises which I will begin three times a week at Holy Cross Hospital for the next month and see her back at that time. I’ve given her permission to return to work a week from Monday and hopefully this syndrome of pain in her spine will eventually disappear.

She was unable to return to work and was seen again by Dr. Todd on July 6, 1981, when he noted continuing pain for which he prescribed a steroid. Claimant requested further orthopedic treatment and was sent for examination to Dr. Schiuma, a surgeon, on August 10, 1981. He reported that claimant appeared to be “exaggerating her symptoms” and that she “could be working full duty,” but did not advise her to resume working. He did tell her that he did not feel she was being candid with him. Benefits were terminated and claimant testified she was then told the carrier would not pay for her to see another doctor or return to Dr. LeStrange.

Claimant eventually returned to see Dr. LeStrange in late January, 1982, at her own expense. Another myelogram indicated a herniated disc for which LeStrange did disc fusion surgery in March, 1982. He related the need for surgery to her industrial accident, and opined that claimant’s condition had deteriorated between March, 1981, and February, 1982. (e.s.)

The order appealed denies temporary disability compensation for seven months between August 10,1981, and March 3,1982, because the deputy found that claimant did not present evidence of medical incapacity. We conclude that the deputy erred in denying benefits based on acceptance of the opinion of the consulting doctor, Dr. Schiu-ma, that claimant was “not disabled” on August 10. The order indicates an erroneous assumption by the deputy that medical incapacity could be shown only by expert testimony from a “doctor who saw her at this particular time.” There appears to have been no treating physician authorized at the time in question, and in any event the ultimate surgery obtained by claimant fully confirmed her testimony as to her incapacity during the preceding year.

The deputy made no findings except (1) to note lack of job search, (2) to “accept the opinion of ... the only doctor who saw her at this particular time ... that the lady had no objective signs of any abnormality ... as ... consistent with logic and reason,” (e.s.) and (3) to “accept the opinion” of the doctor “that when he saw the claimant on August 10, 1981, the claimant was not ... disabled.” Temporary total disability compensation and medical benefits paid before August 10, and after claimant’s hospitalization for surgery the following March, are not in dispute.

Because of the total absence of other factual findings, as well as the limited nature of the accepted opinion against “objective ... abnormality,” we conclude that the deputy erred in the application of both legal and evidentiary standards in this case. The record indicates an employer/carrier denial of all medical care during the time in question; the absence, until January, of any clear communication to claimant that temporary disability was controverted and job search required; the ambiguity of the August 10 medical evaluation reported to her, that nothing “too much wrong" was found and that her “sincerity” was suspect; and retroactive reinstatement several months after claimant independently obtained surgery in March, which confirmed a degenerative disc condition during the time now in question. The latter surgical confirmation, lending support to the only other evidence of claimant’s condition — her testimony as to 90% bed confinement, shows the deputy’s acceptance of and reliance on the consultant’s opinion to be both insubstantial and insufficient as the sole predicate for denial of temporary disability compensation in the context of the record before us.

The order is therefore reversed and the cause remanded with directions that the claim be granted, including interest and penalties with respect to the specified period but excluding other interest issues not presented at the hearing before the deputy.

WENTWORTH and ZEHMER, JJ., concur.

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

NIMMONS, Judge,

concurring in part and dissenting in part.

The deputy did not err in accepting the opinion of Dr. Schiuma that appellant was able to work. Further, there was no medical evidence that claimant was unable to work during the period in question. Appellant did not engage in a good faith work search during that period. Ordinarily, under those circumstances, a claimant is not entitled to temporary total disability benefits. See Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); State v. Campbell, 417 So.2d 1156 (Fla. 1st DCA 1982). However, denial of TTD benefits cannot be grounded upon a claimant’s failure to seek work in the absence of evidence that the claimant knew or should have known that he was released for that purpose. Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983); Fulmer-Orlando v. Taylor, 419 So.2d 734 (Fla. 1st DCA 1982). The evidence on this point was conflicting. Dr. Todd noted that he told appellant on June 4, 1981, that she could return to work. When she requested to be seen by another physician, the employer/carrier authorized Dr. Schiuma to examine her. Although Dr. Schiuma did not specifically advise her that she could return to work, he told her at the conclusion of his examination that he did not find much wrong with her and that she was not being sincere with him. Even if Dr. Schiuma’s advice to appellant might not be regarded as a release to work, it certainly could not be regarded as a rescission of Dr. Todd’s earlier release to work.

Appellant, however, denied that she was advised by anyone in 1981 that she could return to work. The deputy failed to address the issue as to whether the appellant knew or should have known that she was released to work and made no reference to the conflicting evidence on this issue. In my view, the order denying appellant’s claim for TTD should be reversed and the cause remanded for the entry of a new order after consideration and resolution by the deputy of the above unresolved issue on the present record. If that issue were resolved against the claimant, I believe the deputy’s denial of the claim for TTD benefits for the period from August 10, 1981 to March 3, 1982, would be supported by competent substantial evidence.

      . The employer/carrier paid temporary total disability benefits from the date of accident until August 10, 1981, and from March 3, 1982, through November 1982.

      . The absence of findings as to communication to claimant of work release instructions also requires reversal. See Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983); Fulmer-Orlando v. Taylor, 419 So.2d 734 (Fla. 1st DCA 1982). Claimant denies that she was advised by anyone in 1981 that she could return to work.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTH TRAIL FIRE CONTROL DISTRICT And Nationwide Insurance Company, Appellants, v. Floyd C. JOHNSON, Jr., Personal Representative of the Estate of John Charles Johnson, Deceased, Appellee.
    No. AU-52.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    Keith A. Mann, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Ivan Matusek, St. Petersburg, for appel-lee.
   PER CURIAM.

We hold that section 112.18, Florida Statutes (1981), applies to chapter 440, Florida Statutes (1981). AFFIRMED.

WENTWORTH, ZEHMER and BAR-FIELD, JJ., concur.


author: LEHAN, Judge.

text:
    Tom KAPETANOPOULOS and George Kapetanopoulos, Appellants, v. Emma A. HERBERT and Raymond Herbert, husband and wife, and Alfred E. Birge, d/b/a Birge Meat Market, Appellees.
    No. 83-1591.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.

      Harold S. Wilson, Clearwater, for appellants.
    David J. Kurland of Kurland & Johnson, P.A., and Stephen H. Haskins of Haskins & Taylor, Clearwater, for appellees.
   LEHAN, Judge.

Appellants, defendants below, appeal an order denying their motions to vacate default and final judgments rendered against them. Of the appellant’s points on appeal, one has merit. We reverse the trial court’s order and remand for a new trial.

The complaint filed against the appellants and Alfred E. Birge alleged causes of action for personal injuries sustained when the plaintiff fell on premises owned, but not occupied, by the appellants. Birge, d/b/a Birge Meat Market, was the occupant of the property.

A default judgment was entered against the appellants by reason of their failure to file responsive pleadings. Following a jury trial on the damages issue, a $30,247.47 judgment was entered against appellants. Appellants’ motions to vacate the judgment and default were denied. One of the motions which was filed under Florida Rule of Civil Procedure 1.540(b) asserted excusable neglect by appellants in their failure to file responsive pleadings. We conclude that there was an abuse of discretion in the denial of that motion to vacate.

The injury alleged in the complaint occurred approximately three weeks after the appellants closed their purchase of the premises from Birge. At the closing the liability insurance premium was prorated so that Birge was credited with the amount he, as the owner of the property, had previously paid for the insurance. The insurance company was notified of the change in ownership.

Appellants argue that the default and the final judgment against them should be vacated because of their excusable neglect in believing they were represented in this cause by their insurance company’s attorney who would file pleadings on their behalf. They assert three grounds in support of their argument for excusable neglect.

First, by prorating the insurance premium at the closing, the appellants became the insureds and therefore were entitled to coverage. Second, in his sworn affidavit accompanying the motion to vacate, one of the appellants attests to the insurance company having made certain statements that led the appellants to believe they were to be represented by the company’s attorney. According to the affidavit, shortly after the complaint was filed an adjuster for the insurance company met with all of the defendants. During that meeting, in response to appellants’ inquiry, the adjuster told them that the company’s attorney would take care of their court appearances. Third, appellants’ personal attorney advised appellants that they would be represented by the insurance company’s lawyer, inasmuch as they were covered under the insurance policy. That advice was given when appellants questioned the attorney (the same attorney who handled for them the purchase of the premises) when they received an amended notice for pretrial conference which showed that Birge was represented by an attorney but they were not. Appellees’ subsequently filed pretrial statement referred to the insurance company’s attorney as attorney for appellants.

The general rule is that to justify setting aside a default judgment, a defendant must show “both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense.” Westinghouse Elevator Co., A Division of Westinghouse Electric Corp. v. DFS Construction Co., 438 So.2d 125, 126 (Fla. 2d DCA 1983). See Abray Construction Co. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983). We believe appellants have shown both in this case.

In their proposed answer to the complaint attached to their motions to vacate, appellants not only generally denied the allegations of the complaint, but also affirmatively alleged that they lacked control and possession of the premises, that they did not allow the purported unsafe condition of the premises to exist and that they lacked knowledge of the alleged unsafe condition. Appellants also alleged affirmative defenses of comparative negligence and no breach of duty to the plaintiff licensee. Their factual and affirmative defenses are supported by appellants’ sworn motion to vacate and affidavit which set out ultimate facts to show the existence of a meritorious defense. We cannot say that appellants have not asserted meritorious defenses. See, e.g., Simms v. Kennedy, 74 Fla. 411, 76 So. 739 (1918); Morris v. Florentes, Inc., 421 So.2d 582 (Fla. 5th DCA 1982); McDonald v. Wingard, 309 So.2d 192 (Fla. 1st DCA 1975); Pinson v. Barlow, 209 So.2d 722 (Fla. 2d DCA 1968), overruled on other grounds, Hix v. Billen, 284 So.2d 209 (Fla.1973).

Appellants also, in our view, established their excusable neglect. Mere inadvertent failure of a defendant to employ counsel to enter an appearance so that a default judgment would be avoided will not establish excusable neglect. Benedict v. W.T. Hallow Co., 52 Fla. 188, 42 So. 239 (1906); Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364 (Fla. 2d DCA 1977). However, in this case appellants had a reasonable basis to believe that pleadings would be filed on their behalf by the insurance company’s attorney. Appellants acquired the basis for that belief from the foregoing responses to their inquiries which they made at important junctures of the case, i.e., after the complaint was filed and again after the amended notice was received.

In Edwards v. City of Fort Walton Beach, 271 So.2d 136 (FIa.1972), the Florida Supreme Court disapproved a general rule promulgated in Lawn v. Wasserman, 226 So.2d 261, 263 (Fla. 3d DCA 1969), that “misplaced reliance upon an insurance company for his timely defense is not excusable neglect.” Edwards said “Obviously the facts of each case are of singular importance in determining whether or not relief under RCP [sic] 1.540(b) should be granted.” Id. 271 So.2d at 137.

While simply relying upon an insurance company for legal representation may not constitute excusable neglect, we feel that in this case the reliance was justified, especially in light of the adjustor's statement and the attorney’s assurance. The record reflects what appears as reasonable diligence by defendants. See Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964).

We recognize that in review of an order granting or denying a motion to vacate a default judgment, gross abuse of discretion must be shown in order for the reviewing court to reverse. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla. 1977); Bailey v. Deebold, 351 So.2d 355 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1213 (Fla.1978). Especially in view of Florida’s “long-standing policy of liberality towards the vacation of defaults so that the merits of a cause may be reached”, Westinghouse, 438 So.2d at 126, we feel that the failure to grant the motion to vacate in this case meets the standard for reversal. A greater showing of abuse of discretion is generally required to reverse a trial court’s order granting a motion to vacate a default than is required to reverse a denial of such a motion, as we do here. See Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


author: SCHOONOVER, Judge.

text:
    Nathaniel DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1234.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Nathaniel Daniels, has appealed from a judgment and sentence entered pursuant to a jury verdict finding him guilty of aggravated battery. We reverse.

On the day of trial, the appellant filed a motion seeking discharge of his court-appointed attorney. After a hearing, the trial court denied the appellant’s motion, refused his request for a continuance, and ordered the jury selection process to commence immediately. Additionally, the court, over appellant’s objection, required the court-appointed attorney to sit with the appellant during trial.

A person entitled to court-appointed counsel has neither the right to select a specific attorney nor the right to discharge competent and conscientious counsel. Wilder v. State, 156 So.2d 395 (Fla. 1st DCA 1963). Therefore, once the trial court ruled there was insufficient reason to discharge the attorney, the appellant either had to accept that attorney or forego representation. By refusing to accept the court-appointed attorney, the appellant in effect was attempting to exercise his right to self-representation. Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981). At this point, the court had an obligation to inform the appellant of the benefits he was relinquishing and resulting dangers and disadvantages of self-representation. Then, if the appellant still insisted upon dismissing counsel, the court had a duty to determine whether the appellant had made his choice voluntarily and intelligently and/or whether unusual circumstances existed which would preclude him from presenting his own case. Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983).

In the ease sub judice, upon appellant’s refusal of court-appointed counsel, the trial court failed to make the proper determination in accordance with the procedures outlined in Williams.

Reversed and remanded for a new trial.

OTT, C.J., and LEHAN, J., concur.


text:
    James Harris SANDERS, Appellant, v. INVERSIONES VARIAS, S.A., (INVASA), Appellee.
    No. 84-89.
    District Court of Appeal of Florida, Third District.
    May 4, 1984.

      Hyman & Kaplan and Andrew Kaplan, Miami, for appellant.
    Mark V. Silverio, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.

       Participated in decision but not oral argument.

   PER CURIAM.

Following this court’s opinion reported as Sanders v. Inversiones Varias, S.A. (Invasa), 436 So.2d 1089 (Fla. 3d DCA 1983) the matter recurred in the trial court and on remand Sanders conducted more discovery, requested fees and costs, demanded jury trial and moved for non-resident bond pursuant to § 57.011 Florida Statute (1979). Almost 4 years after the case had begun, he moved for the first time for change of venue to Managua, Nicaragua, alleging that the parties agreed that venue for any action on the contract would be Managua. The contract clause states, “(Domicile) For all matters in connection with this contract, the lessee and lessor state their domiciles to be in the jurisdiction of the judges of the Managua Department.” After hearing on the motion, the trial court entered the order appealed denying the motion for change of venue. We affirm.

First, it is doubtful whether the covenant established venue per contract or is merely a provision providing which law will govern the interpretation of the underlying agreement. It appears to be, in fact, the latter. Cf., Department of Motor Vehicles, etc v. Mercedes-Benz of North America, Inc., 408 So.2d 627 (Fla. 2d DCA 1981); Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975); Hunt v. Hunt, 280 So.2d 63 (Fla. 4th DCA 1973).

Further it is clear that from the actions of the defendant in failing to raise the issue in some four years of litigation and in seeking affirmative relief in this jurisdiction, such as a non-resident cost bond, the defendant has waived the right to insist on contractual venue, even if it was valid in the first instance. Inverness Coca-coca Bottling Company v. McDaniel, 78 So.2d 100 (Fla.1955); Straske v. McGillicuddy, 388 So.2d 1334 (Fla. 2d DCA 1980); Aquaco, Inc. v. Hopkin, 323 So.2d 678 (Fla. 3d DCA 1975); Fla.R.Civ.P. 1.140(b).

Therefore for the reasons above stated, the order under review be and the same is hereby affirmed.

Affirmed.


author: FERGUSON, Judge.

text:
    Ruth S. BOYD and John W. Boyd, Appellant, v. Lin BRETT-MAJOR and Lawyers Professional Liability Insurance Company, Appellees.
    No. 83-835.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.

      Michael A. Nuzzo, Miami, for appellant.
    Conrad, Scherer & James and Joseph S. Kashi, Fort Lauderdale, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Appeal is taken by the plaintiffs below from a judgment entered on a jury verdict for an attorney and her insurer in a legal malpractice action. The appeal challenges an affirmative defense, and jury instruction given in accordance with that defense. There is no challenge to the sufficiency of the evidence to support the instruction.

The salient facts are as follows. In May 1980, plaintiffs’ son was required to post a criminal appearance bond in Palm Beach County. A bonding company agreed to post the $100,000 bond and in return plaintiffs signed a mortgage and promissory note encumbering their home. The bonding company failed to file an affidavit as required by Section 903.14, Florida Statutes (1983), thereby creating an absolute defense to any subsequent foreclosure action. When plaintiffs’ son failed to appear in court, the bond was estreated. The bonding company unsuccessfully sought reimbursement from plaintiffs, and ultimately filed a mortgage foreclosure action.

Plaintiffs retained the defendant-attorney to represent them in the action. Plaintiffs claim on appeal that they wished to win the suit, and that the attorney assured them of success. Defendant-attorney contends, however, that because plaintiffs wished to maintain an ongoing relationship with the bonding company, they requested only that the action be delayed so that they could raise the funds to repay the debt. In any event, the attorney-filed an answer in the foreclosure action, .but failed to adequately plead Section 903.14 as an affirmative defense. A final summary judgment was entered against plaintiffs on the bonding company’s motion. On appeal we affirmed the judgment. Boyd v. International Fidelity Insurance Co., 412 So.2d 944 (Fla. 3d DCA 1982).

Plaintiffs thereafter filed a legal malpractice action against the attorney and her insurer. Defendants alleged as an affirmative defense to the claim:

The Plaintiffs specifically instructed the Defendant, LIN BRETT-MAJOR, to protect their interests in an agreement which they had negotiated with all the bondsmen, including Frank McGoey, the bondsman for International Fidelity Insurance Company,- and at all times, the Defendant, LIN BRETT-MAJOR, acted in accordance with the instructions given to her by the Plaintiffs, after having explained various potential defenses to the foreclosure actions brought by the bondsmen.

At the conclusion of the evidence, the jury was instructed:

The next issue for your consideration is that LIN BRETT-MAJOR was acting according to the specific instructions of her client and an attorney is dutibound to carry out the specific instructions of a client provided that criminal or fraudulent ends are not intended. If you find that LIN BRETT-MAJOR was carrying out the specific instructions of her client, then your verdict should be for the Defendant, LIN BRETT-MAJOR.

The proof at trial showed that the attorney was hired not to win the case but to delay the action (even though the bonding company’s failure to file an affidavit created an absolute defense) because the clients intended to live up to their contractual obligation and wished to remain on good terms with the bondsman. Plaintiffs argue that to permit an affirmative defense such as that presented here, which is without legal precedent, would establish an untenable situation by which attorneys could avoid liability for their professional omissions simply by pleading that they followed a course of action desired by the client. We are not convinced that the door is opened to a parade of horribles unless we disapprove of, as a defense to a malpractice claim, that the course of action taken by counsel was at the direction of an otherwise well-advised client. The relevant inquiry is whether the attorney followed the explicit directions of his client, which presents a question of fact.

There are apparently no Florida cases directly on point, but defendants cite two cases from other jurisdictions which have addressed the question. In Orr v. Knowles, 215 Neb. 49, 337 N.W.2d 699, 702 (1983), the court held:

It is not the role of an attorney acting as counsel to independently determine what is best for his client and then act accordingly. Rather, such an attorney is to allow the client to determine what is in the client’s best interests and then act according to the wishes of that client within the limits of the law.

Accord Downton v. Perini, 511 F.Supp. 258 (N.D.Ohio 1981) (a lawyer may not force a client to pursue a given course of action even though the lawyer sincerely believes it is in the client’s best interests to do so).

Affirmed.


author: SCHWARTZ, Chief Judge.

text:
    Gloria Tarte WHITE and Wallace Hayes, Appellants, v. Neil B. KAPLAN, Appellee.
    No. 83-1273.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Pallot, Poppell & Goodman and Neil A. Shanzer, Miami, for appellants.
    Neil B. Kaplan in pro per.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

Notwithstanding the appellants’ not un-cogent contention that the law should be otherwise, based on the historical analysis in Watson, Deficiency Suits After Foreclosure: A Matter of Timing, 56 Fla.B.J. 47, 48-50 (1982), it is firmly established that the chancellor’s previous denial of a deficiency judgment specifically sought after foreclosure, which was affirmed in White v. Kaplan, 418 So.2d 1302 (Pla. 3d DCA 1982) (per curiam), precludes the maintenance of the present action “at law” on the note to recover for the same debt. Crawford v. Woodward, 140 Fla. 38, 191 So. 311 (1939); Belle Mead Dev. Corp. v. Reed, 114 Fla. 300, 153 So. 843 (1934); Provost v. Swinson, 109 Fla. 42, 146 So. 641 (1933); see Scheneman v. Barnett, 53 So.2d 641 (Fla.1951), and cases cited. The summary-judgment rendered below in the defendant’s favor is therefore

Affirmed.


text:
    B.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1352.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

The finding of delinquency and disposition under review is affirmed upon a holding that the trial court properly denied the juvenile’s pretrial motion to suppress the cannabis seized by police from the juvenile’s person because: (a) the arresting officer properly stopped the automobile in which the juvenile was riding based on a reasonable belief that the juvenile and his companions were absent from school without authorization, § 39.401(l)(e), Fla.Stat. (1983), (b) the juvenile and his companions were thereupon properly ordered out of the automobile by the arresting officer, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); and (c) the cannabis was thereafter properly seized by the arresting officer as it was observed in plain sight in a clear plastic bag in the front pocket area of the juvenile’s jacket. Neary v. State, 384 So.2d 881, 884 (Fla. 1980); Gibson v. State, 368 So.2d 667 (Fla. 3d DCA 1979).

Affirmed.


author: NESBITT, Judge. PER CURIAM.

text:
    Joyce M. TADDIKEN and Frank Taddiken, Appellants, v. FLORIDA PATIENT’S COMPENSATION FUND, Appellee.
    Nos. 83-1478, 83-1541.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied July 17, 1984.
    McClellan & Vostrejs, Ocala, and Robert Brake, Coral Gables, for appellants.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Judith A. Bass, Miami, for appellee.

      Before SCHWARTZ, C.J., and NES-BITT and DANIEL S. PEARSON, JJ.

       Chief Judge Schwartz did not hear oral argument.

   NESBITT, Judge.

This is an appeal from a final judgment on the pleadings in favor of the Florida Patient’s Compensation Fund. Judgment was entered for the Fund based upon a finding that it was joined more than two years after the cause of action accrued and thus was barred by the applicable statute of limitations. We affirm.

On June 13, 1980, an action was brought by Mrs. Taddiken against the doctors and hospital based upon alleged malpractice which occurred on June 16, 1978 and was discovered in October of 1978. Plaintiff alleges that it was not until May 1981 that she first discovered that she had a cause of action against the Fund, and in September 1981 she amended her complaint to join the Fund as a party.

The plaintiff, in opposition to the entry of a judgment on the pleadings, argues: (1) the Fund acts as an insurer and therefore the cause of action against it does not arise until a judgment is entered; (2) the two-year statute of limitations provided by section 95.11(4)(b), Florida Statutes (1977) is not applicable to the Fund; and (3) she has been denied access to court because she was unaware of her claim until after the statute of limitations had run.

We must commence our discussion of the issues presented by looking to the statutory provisions regarding the claims procedure against the Fund. Section 768.-54(3)(e), Florida Statutes (1979) provides, in pertinent part:

1. Any person may file an action against a participating health care provider for damages covered under the fund, except that the person filing the claim shall not recover against the fund unless the fund was named as a defendant in the suit. The fund is not required to actively defend a claim until the provisions of s. 768.44 are completed or waived, suit is instituted, and the fund is named therein. If, after the facts upon which the claim is based are reviewed, it appears that the claim will exceed $100,-000 or, if greater, the amount of the health care provider’s basic coverage, the fund shall appear and actively defend itself when named as a defendant in the suit.

Interpreting this statute, this court, in Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980), concluded that the plaintiffs have the burden of making the Fund a party in any suit where recovery is sought against a health care provider in excess of $100,000. Once the Fund is named and it has determined that the claim may exceed $100,000, it has the obligation to appear and actively defend itself.

Plainly, these requirements are inconsistent with the plaintiff’s contention that the Fund acts as an insurer who need not be joined until after judgment against the insured. Accord Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA), pet. for review denied, 436 So.2d 100 (Fla.1983); see also Florida Patient’s Compensation Fund v. Mercy Hospital, Inc., 419 So.2d 348 (Fla. 3d DCA 1982). We conclude therefore that for purposes of the statute of limitations the Fund does not act as an insurer.

The question that remains then is what is the applicable statute of limitations. The Fund, of course, argues that the two-year limitation provision for those in privity with health care providers is applicable, see § 95.11(4)(b), while the plaintiff argues that the claim falls under the four-year limitation period as an action for negligence, § 95.11(3)(a), or for statutory liability, § 95.11(3)(f), or an action not provided for elsewhere, § 95.11(3)(p).

In our view, the Fund’s position is the correct one. There is no definition of privity which can be applied in all cases, Tallahassee Variety Works v. Brown, 106 Fla. 599, 144 So. 848, 852 (1932), and in fact, the meaning will vary according to the purpose for which the theory is invoked. Generally, however, privity refers to a mutual or successive relationship to the same right. Osburn v. Stickel, 187 So.2d 89 (Fla. 3d DCA 1966). In the present case, there is a mutuality of interest which exists between a health care provider and the Fund which extends to the lawsuit itself, the alleged claims of medical malpractice and the damages claimed. The very relationship which exists between the Fund member and the Fund is the underlying reason for the legislature’s mandate that the Fund must be joined as a defendant in the lawsuit. To conclude otherwise and require a two-year statute of limitations for the Fund member but a four-year statute of limitations for the Fund itself would create the possibility that the litigation would be nearly concluded before the statute of limitations would bar the Fund’s joinder. Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984). Such a result would seriously impair the Fund’s right to defend the case. Thus, we hold that the Florida Patient’s Compensation Fund is in privity with the health care provider so that the two-year statute of limitations provision is applicable. Accord Owens; Burr.

Finally, we briefly address plaintiffs contention that she has been denied access to court because she was unaware of her claim until after the statute of limitations had run. We recognize that our supreme court has held that the statute of limitations may not bar a cause of action before it has -accrued, Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 1981), but that is not the situation presented here. This plaintiff has alleged that she was aware of her cause of action for medical malpractice in October, 1978, and thus, at the latest, her cause of action accrued on that date. § 95.11(4)(b). During the next two years she instituted suit against the health care providers, which action is still viable. To preclude her at this point from joining the Fund does not bar her claim, it merely limits the amount of recovery which may be obtained. Such action does not constitute denial of access to court. See Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981).

Based on the foregoing, we affirm.

ON MOTION FOR REHEARING

PER CURIAM.

The appellants’ motion for rehearing is denied. However, we hereby certify to the Supreme Court of Florida that the decision in this case involves the following question of great public importance:

Whether a claim against the Florida Patient’s Compensation Fund arises at the time of the alleged medical malpractice, rather than when judgment is entered against the tortfeasor, and is governed by the two year statute of limitations provided by Section 95.11(4)(b), Florida Statutes (1977), so that the Fund must be made or joined as a party defendant within two years after the malpractice action accrues?

      . Insofar as an action for medical malpractice must be commenced within two years from the time the incident is discovered, § 95.11(4)(b), the date on which the plaintiff discovered the existence of the Fund is irrelevant. In any event we have difficulty accepting plaintiff’s argument that she had no reason to know that the defendants were Fund members prior to the running of the statute of limitations in light of the statutory requirement that the Fund’s records- be open to the public for inspection. § 768.54(3)(d)2., Fla.Stat. (1979).


author: WALDEN, Judge.

text:
    Nicholas Roman KASHINO and Mary Kashino, Appellants, v. John A. MORELL, Gwen J. Morell and West American Insurance Company, Appellees. John A. MORELL, Gwen J. Morell and West American Insurance Company, Appellants/Cross Appellees, v. Nicholas Gerard KASHINO, Appellee/Cross Appellant.
    Nos. 83-424, 83-453.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Milton Philip Shafran of Lavender & Shafran, Fort Lauderdale, for appellants and appellee/cross appellant.
    Richard S. Zaifert, Fort Lauderdale, and Val L. Osinski, Coral Springs, for appellees and appellants/cross appellees.
   WALDEN, Judge.

There was an alleged rear-end collision between two vehicles with resulting jury trial. Plaintiff, Nicholas Roman Kashino, was the operator of the front vehicle. Defendant, John Morell, was the operator of the rear vehicle. Kashino testified that his car was struck in the rear by the Morell automobile. Morell denied ever having come in contact with the Kashino automobile. Each side produced corroborating witnesses. Thus, there was a basic conflict in the testimony leaving a jury issue as to witness credibility and whom to believe as to whether or not the collision actually occurred. In addition, there was an issue as to whether the injuries claimed came as a consequence of the collision.

The jury exonerated Morell and, in its special interrogatory verdict, found that Kashino did not suffer the claimed injuries as a result of the accident. Interpreting, the jury found either that the collision did not happen, or that the claimed injuries were not caused by the collision.

The trial court granted Nicholas Gerard Kashino a new trial. Morell appeals. We reverse.

A review of the record reveals several salient points.

A. The trial court granted the new trial solely because the trial judge thought that Morell had lied — committed perjury — in his testimony. This was based on a comparison between it and the content of an inadmissible police accident report.

B. The new trial was specifically not based on a finding that the verdict was contrary to the manifest weight of the evidence. Ford v. Robinson, 403 So.2d 1379 (Fla. 4th DCA 1981).

C. Post trial, the trial court found probable cause to ask the State Attorney to investigate into whether or not Morell perjured himself. The record is silent as to what, if anything, subsequently occurred with reference to such investigation.

D. Post trial, the trial court cited Morell for direct criminal contempt on the ground that Morell had committed perjury in his trial testimony. Thereafter, upon trial of the issue, the trial court acquitted Morell or found him not guilty of perjury.

Without in anyway denigrating the need for truth before the jury, we feel that the trial court abused its discretion here in granting a new trial based upon its subjective feeling that Morell had lied to the jury. We feel that the better course and better rule was expressed in Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1211 (Fla.1978):

The weight to be given conflicting evidence, especially where the credibility of the witnesses is an issue, is a question for the jury and never one for the court. To allow the court to invade this province of the jury would violate the right to a jury trial. The only exception to this rule should be where the verdict is contrary to the manifest weight of the evidence. This by definition can exist only where the evidence is clear, obvious, and indisputable.

To be sure, the court is not without recourse in the event the court, short of finding that the verdict is contrary to the manifest weight of the evidence, feels that a witness has committed perjury during the course of a trial. It can cite the witness for contempt for interfering with the administration of justice by lying to the jury. It can refer the matter to the State’s attorney. It can grant relief from judgment, based upon an appropriate finding, under the provision of Rule 1.540(b)(3), Florida Rules of Civil Procedure.

We reverse the order granting Nicholas Gerard Kashino a new trial. The remaining appellate points are without merit.

Affirmed in part; reversed in part; and remanded.

GLICKSTEIN, J., and DAUKSCH, JAMES C., Associate Judge, concur.


author: DOWNEY, Judge. GLICKSTEIN, Judge,

text:
    Donald REAM and Curtis Ream, Appellants, v. STATE of Florida, Appellee.
    No. 83-1477.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Bernard Berman, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an appeal by codefendants from an order denying their Florida Rule of Criminal Procedure 3.850 motions for post conviction relief after an evidentiary hearing. In their motions for post conviction relief defendants contended that their lawyers (one succeeded the other) advised them he had obtained a plea bargain or agreement for them to plead guilty to the charges, abandon any claim to an airplane and truck involved in the criminal episode, cooperate with law enforcement by informing on other persons involved in drug trafficking, in return for three years’ probation. This cause is here for the second time after a remand to permit the defendants, in view of the cloudy record, to present evidence to support their motions. Ream v. State, 426 So.2d 1310 (Fla. 4th DCA 1983).

The cloudy record referred to in our earlier opinion showed that the State charged defendants, who are brothers, with trafficking in marijuana. Pleas of guilty were entered sometime prior to March 3, 1982. On March 8, 1982, defendants appeared for sentencing, part of which was done in camera. The court sealed the transcript of that hearing to protect the defendants and ordered it unsealed for inclusion in the present record on appeal. At that hearing a customs official outlined for the court how the defendants had cooperated with the authorities by informing on various persons involved in illegal drug traffic leading to various arrests. Thereafter, defense counsel urged probation because of the defendants’ cooperation. The prosecutor then said he wanted, in the presence of the defendants, to go over what his understanding of the agreement was. He said he had received cooperation, but not as much as he had hoped, and that the State could not openly recommend probation. The State would not oppose probation if the court felt it should be given and that the State was willing to go along with probation. The court announced it was convinced there was cooperation. It then said it would sentence the defendants in open eourt, and that because of their cooperation and the information gleaned from the PSI, it was going to cut their sentences to half what it would otherwise have been. After the in camera session, appellants were each sentenced in open court to three years in prison and a $10,000 fine.

At the evidentiary hearing held on remand both defendants testified that both of their lawyers had advised them to accept the State’s offer of three years’ probation in return for entry of guilty pleas, abandonment of an airplane and truck, and cooperation with law enforcement. At this evidentiary hearing the State offered no evidence whatsoever. Nonetheless, the trial court denied the motion, and this appeal ensued.

We are unable to determine any basis upon which the motion could be denied. The only testimony before the trial court on this motion was appellants’. They say they pleaded guilty because they were assured by both their lawyers that an agreement had been reached with the State for three years’ probation on the conditions referred to above. There is no contradicting testimony. Nor does the record contain any other evidence to contradict that contention. A guilty plea induced by a promise of defense counsel that is not kept is involuntary. Cooley v. State, 245 So.2d 679 (Fla. 4th DCA 1971).

We note in passing that the colloquy between the judge and appellants when their plea was taken is inadequate to meet the requirements for determination of vol-untariness. Such inadequacy is not enough to permit withdrawal of the defendants’ guilty pleas had the State proved the volun-tariness and intelligence of the pleas. See, e.g., United States v. Pricepaul, 540 F.2d 417 (9th Cir.1976); Sena v. Romero, 617 F.2d 579 (10th Cir.1980). Thus, because of the inadequate interrogation at the plea hearing the burden was on the State at the Rule 3.850 evidentiary hearing to show the nature of that agreement if it differed from appellants' version!

In view of the foregoing, we reverse the order appealed from and remand the cause with directions to vacate the judgment and sentence and allow appellants to withdraw their pleas. Cf. Rimanich v. United States, 357 F.2d 537 (5th Cir.1966).

REVERSED AND REMANDED, with directions.

ANSTEAD, C.J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

The Preamble of the Integration Rule of The Florida Bar enunciates principles adopted by the Supreme Court to effectuate the following goals: (1) To inculcate in the members the principles of duty and service to the .public, (2) To improve the administration of justice, and (3) To advance the science of jurisprudence. This opinion addresses the latter two goals in relation to the case at hand. My primary observation is that material inefficiency during the trial proceedings on the part of one or more of the principal players (a) precludes the administration of justice at the trial level and (b) transforms appellate judges, whose function is to make and analyze value judgments, into janitors with robes. The instant case, in my subjective opinion, reflects inefficiency that has complicated a facially strong case which otherwise would have worked itself through the system quickly and effectively. The result is that we have spent our time with a broom and pan instead of a quill.

Appellate judges were not created to cure inefficiency. Had they been, there would be no reason for those involved in trial proceedings to be efficient, because an infinite number of appellate janitors could be appointed. I perceive our role as more positive, more creative than cleaning up the results of the lack of surgical attention. If anything, ideally there should be fewer, not more, appellate judges, were there greater attention by all participants at the initial judicial stage. At a recent oral argument session, the writer perceived all of the criminal appeals to turn on lack of attention at the trial level by the participants. In short, we here should be resolving questions of law — however subjectively, because of our diverse value judgments— rather than cleaning up clouds of dust.

To be more specific, the probable cause affidavit in this case recites that the two defendant brothers were caught, red-handed, in the smuggling of marijuana into an airstrip in Okeechobee County. The information reflects that they were then charged with trafficking in cannabis (in excess of 100 pounds) in violation of section 893.135, Florida Statutes (1981), which carries a mandatory minimum term of imprisonment of three years and a fine of $25,-000.

Defendants’ initial attorney, Mr. Teller, filed an unsuccessful motion to dismiss and waiver of speedy trial. Mr. Teller retired in June 1981 and other counsel assumed the defense and filed motions for continuance.

We are led to believe that at some unknown date, an attorney for the two defendants, without his clients, met to bargain his clients’ fates with representatives of the state attorney’s office, the latter of whom presumably were expected to be meticulous in any bargains involving parties ostensibly nailed to the proverbial wall. We have no idea what actually occurred, when, and among whom, because there is no sworn testimony, affidavit or stipulation from the state to tell us. It was apparently the wish of defendants’ attorney that whatever agreement was made, it would not be reduced to writing, to which the state’s representatives apparently agreed. Hardly a word is mentioned about one of the two defendants being represented in this unsworn record as to any “deal” that the other defendant, Donald Ream, could deliver a substantial number of smugglers. Apparently, Donald Ream delivered a few smugglers and helped in the confiscation of an airplane. There is an indication, completely unsworn, that on the second of his cooperative stunts, he flew to Jamaica at some personal risk.

As the majority opinion points out, what occurred thereafter in the proceedings was contrary to recognized procedures, all of which has occasioned tapping the taxpayers’ limited resources needlessly in two reruns to date and a third as a result of this decision. Some people apparently share the twin beliefs that apathy makes sense because we all live forever, and inefficiency is acceptable because the taxpayers’ pockets are bottomless.

      . Even the statements of the customs agent at the time of defendants’ sentencing were un-sworn.

      . Unlike The Dirty Dozen, the fictionalized American soldiers given conditional amnesty from their fate pending their performance against the enemy, the Reams were imprisoned after their ostensible assistance, and remain so.


author: HERSEY, Judge.

text:
    Elijah BADGER, Petitioner, v. The TOWN OF DAVIE, Respondent.
    No. 84-91.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Sharon Bourassa-Diaz of Legal Aid Service of Broward County, Fort Lauderdale, for petitioner.
    Neil J. Roult of Goodman, Pleeter & Webber, Davie, for respondent.
   HERSEY, Judge.

Petitioner seeks a writ of certiorari to review an order of the circuit court dismissing an appeal from an order of a municipal code enforcement board.

Petitioner was charged with a violation of municipal ordinances of the Town of Davie, Florida, and, after hearing, an order was entered by the code enforcement board requiring abatement of the violation.

Petitioner then timely filed a petition for writ of certiorari in the circuit court. That petition provided as follows:

Petitioner files this petition for writ of certiorari against the respondent to review the final order of the respondent entered July 13, 1982, copy attached hereto.
Petitioner would show the court that by reason of the present incapacitation of his undersigned counsel who is presently hospitalized, this petition is filed without the requisite supporting allegations so as to be in compliance with FS [166.061]. As soon as petitioner’s undersigned attorney is able, an amended petition will be filed.

Filing of the petition was followed by six months of record inactivity. On February 14, 1983, petitioner filed a pleading in the nature of a complaint for trial de novo and motion to amend petition for writ of certio-rari to reflect the correct pleading, a notice of appeal. On February 16, 1983, respondent filed its motion to dismiss.

After hearing, the lower tribunal acting in its appellate capacity entered an order dismissing the complaint with prejudice upon the following grounds:

That the present proceeding is governed by the provisions of § 162.11, Florida Statutes, and the Florida Rules of Appellate Procedure, and that the Petitioner has not complied with the Rules of Appellate Procedure respecting conduct of an appellate proceeding.

The stated basis for the present petition is the circuit court’s failure to treat the petition for writ of certiorari as a notice of appeal, as required by Rule 9.040(c) and Article V, Section 2(a) of the Florida Constitution. As a result, contends petitioner, the essential requirements of the law have not been observed and he has not been afforded due process of law. Standing alone, we would agree with this contention.

There was more involved, however, than this preliminary procedural defect. First, the record discloses that a copy of the petition was mailed to the Town of Davie but the record does not contain any showing that a copy was filed with the Clerk of the Code Enforcement Board as required by Rule 9.110(b), Florida Rules of Appellate Procedure; second, a record was never filed in the circuit court as in an appeal, nor were briefs served or filed during the six months following the filing of the petition; third, while the petition suggests the incapacity of petitioner’s counsel and predicts the possibility of delay, nonetheless no motion for extension of time for compliance with the appellate rules was ever filed; fourth, the ultimate late filing consisted of inappropriate pleadings concerning trial de novo; and fifth, on October 4, 1983, fourteen months after the original order was entered, no effective vehicle for appellate review had been presented or even postulated by petitioner.

In view of the fact that the trial court’s dismissal could have been based upon any one or all of these deficiencies, the issuance of a writ of certiorari by this court would be equivalent to a statement that the trial court departed from the essential requirements of law in dismissing review proceedings instituted in an incorrect fashion and pursued untimely with inappropriate pleadings. We are not prepared to take such a position.

We are not unsympathetic to petitioner nor to petitioner’s counsel. Were this a matter of first impression we might well have permitted amendment and granted the requisite extension of time for compliance with appropriate standards. However, situated as we are at the apex of the triangle of certiorari jurisdiction in this litigation, we are constrained by long established principles to withhold the writ.

CERTIORARI DENIED.

BERANEK and HURLEY, JJ., concur.


text:
    Daniel MEILMAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-599.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Jerome M. Rosenblum, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION TO REVIEW DENIAL OF SUPERSEDEAS BOND

PER CURIAM.

At issue is the propriety of the trial court’s denial of a motion to set a superse-deas bond. We reverse. ■

Defendant entered a plea of nolo conten-dere specifically reserving the right to appeal the denial of his motion to suppress. Upon filing the notice of appeal, defendant requested a supersedeas bond. Initially, the state indicated that it was not opposed. to a supersedeas bond, but then seemed to change its position as the hearing progressed. The trial court ultimately denied the motion, basing its decision on the fact that the defendant had entered a plea rather than having been convicted by a jury.

In Murphy v. State, 231 So.2d 263 (Fla. 4th DCA 1970), we held that there is “no valid reason for there to be greater restrictions or limitations placed upon one’s liberty pending appeal from an order of probation than would be the case if, instead of having been placed on probation,' such person had been adjudicated and sentenced and then appealed.” Id. at 264. Accordingly, we ruled that the trial court, in the sound exercise of its judicial discretion, must determine eligibility for supersedeas bond under the criteria set forth in Younghans v. State, 90 So.2d 308 (Fla.1956).

The record in the case at bar affirmatively discloses that the trial court failed to evaluate the defendant’s motion against the Younghans criteria. Thus, we reverse the order denying the motion for superse-deas bond and direct the trial court to reconsider the motion in light of the principles enunciated in Younghans, supra.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD, C.J., and' HERSEY and HURLEY, JJ., concur.


text:
    Patrick M. DOOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-191.
    District Court of Appeal of Florida, Second District.
    May 9, 1984.
   PER CURIAM.

Patrick Dooley appeals pro se an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm in part, reverse in part, and remand.

Dooley raises several allegations in his Rule 3.850 motion. Only two of his claims have merit, both of which relate to the issue of an involuntary plea. His first meritorious allegation is that he was under the influence of psychotropic drugs when he entered pleas of nolo contendere to the charges against him in return for concurrent terms of probation. His second meritorious assertion is that the public defender induced him to enter the pleas based upon a false promise that upon completing the jail portion of his probation terms in Hills-borough County he could return to his family and home in Indiana and serve out the remainder of his terms of probation there. If true, these claims would warrant post-conviction relief. However, the court below neither held an evidentiary hearing nor attached to its order portions of the record which definitely refute these allegations.

Accordingly, we reverse in part the order summarily denying Dooley’s Rule 3.850 motion and remand with instructions that the court below either summarily deny the motion again and, if so, attach to its order portions of the record which conclusively show that Dooley is not entitled to relief as to these claims, or conduct an evidentiary hearing in order to determine if he is entitled to redress as to these allegations. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). In all other respects, we affirm. To obtain further review, Dooley must appeal the court’s new ruling.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

OTT, C.J., and HOBSON and SCHEB, JJ., concur.


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

text:
    Ramon VILLAVICENCIO, Appellant, v. STATE of Florida, Appellee.
    No. 83-149.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Ramon Villavicencio appeals from a judgment and sentence for burglary of a structure and from an order withholding adjudication of guilt on a second count of burglary of a structure. We affirm.

The first question we address is whether the trial court erred in refusing to grant a mistrial based on the prosecutor’s comment that appellant’s testimony was “rehearsed.”

At trial, appellant was asked how he felt “on the inside” after being handcuffed by police and placed in the patrol car. Appellant’s response was “I began to sweat profusely.” An objection to the answer as being unresponsive was sustained. Appellant then stated that he was nervous because the officer was pointing his gun at him.

During closing arguments, the prosecutor commented to the jury as follows:

Officer Boyden arrives on the scene because Officer Phipps has secured those two buildings, no one has entered the hole in Dan’s Fan store. He goes in with his navy blue trousers and with the dog, and when he comes out, what’s all over his navy blue trousers? White dust that wasn’t there when he ... before he entered. White dust on the Defendant’s pants. White dust on Officer Boyden’s blue pants after going in there.
There’s no white dust on the blacktop asphalt paved parking lot, but the Defendant sure had that answer readily available to him, didn’t he. ‘Got that dust when I was laying on the ground.’ How did you get so sweaty?’ ‘Sweaty because I was nervous.’
One of the most important instructions Judge McGregor is going to give you is to take your common sense into that jury room. A reasonable doubt is something that’s reasonable. Just by its very definition, it’s not a speculative or an imaginary doubt, it’s reasonable.
And how do we determine if things are reasonable? We use our common sense and the law that Judge McGregor will instruct you on.
Is it reasonable, gentlemen, that when an attorney asks his client ‘How did you feel inside?’ he blurts out, ‘I was sweating all over?’ It’s a rehearsed answer.

Defense counsel objected and moved for a mistrial on the basis that the comment suggested that he and appellant had concocted the story for trial. The judge denied the motion for mistrial and gave the jury the following instruction:

Gentlemen of the jury, the Court has sustained an objection to the Prosecutor’s comments concerning the use of the word ‘rehearsed.’ That was an improper comment and the Court sustains the objection and asks that you disregard that portion of the prosecutor’s closing argument. Put it out of your minds. It has no effect whatsoever so far as your decision is concerned.

The prosecutor then explained his remark to the jury:

Gentlemen, let me apologize to the Court and to [defense counsel]. But, suffice it to say, when a person is asked how he feels inside and he responds ‘I was sweating’, I think using our common sense that witness felt the need to be unresponsive and have to explain to the six men sitting in that jury box why he was sweating, even though that wasn’t the question that was asked.

A motion for mistrial should be granted only when the comment is so prejudicial as to vitiate the entire trial. Cobb v. State, 376 So.2d 230 (FIa.1979). The courts have also recognized that the prejudicial effect of a comment may be cured by an appropriate instruction. See Jackson v. State, 421 So.2d 15 (Fla.3d DCA 1982); Carter v. State, 356 So.2d 67 (Fla. 1st DCA 1978); Knight v. State, 316 So.2d 576 (Fla. 1st DCA 1975). In the instant case, the court instructed the jury to disregard the remark, the prosecutor apologized and explained the remark in the context of a comment on the evidence. In these circumstances, the denial of the motion for mistrial was not error.

The next question is whether the court erred in denying a motion for new trial based on a communication with the jury out of the presence of appellant and his counsel.

After the jury rendered its verdict, the following discussion took place:

MR. FIGGATT [Defense counsel]: Your Honor, I would again respectfully renew my motion for mistrial made during the course of this trial.
I’d also move the Court for a mistrial because I understand the Court has communicated with the jury outside my client’s presence about an exhibit of some kind that they did or did not want, but I’m not exactly certain what the communication was.
The fact that there has been a communication with the jury, I just want to clarify that because it's going to come up later.
What are they asking for?
THE COURT: It was indicated that they thought there was another exhibit, and all I did was tell them the Exhibit A for identification was not received in evidence.
MR. FIGGATT: And that was the totality of the communication?
THE COURT: Yes.

Appellant contends that the denial of his motion for new trial based on the judge’s communication with the jury was error. In support of his position, appellant principally relies on Florida Rule of Criminal Procedure 3.410 and Ivory v. State, 351 So.2d 26 (Fla.1977). Rule 3.410 provides as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

In Ivory, the court declared:

[T]hat it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request.

351 So.2d at 28. The court reasoned that any communication with the jury outside the presence of the prosecutor, defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.

In the instant case, the judge merely informed the jurors that a certain exhibit introduced at trial had not been admitted into evidence. The jury’s request was neither an express request for testimony to be read to them nor a request for additional instructions regarding the law in the case and thus was not per se within the scope of rule 3.410.

Furthermore, the supreme court has seemingly receded from the near-absolute holding of Ivory. In Hitchcock v. State, 413 So.2d 741 (Fla.1982), the jury, then deliberating guilt or innocence in a capital case, sent a note to the judge: “Is it required for us to recommend death penalty or life at this time?” The judge wrote back: “You should not consider any penalty at this time — only guilt or innocence.” The notes were marked as being filed in open court, but the record did not indicate whether or not the parties were present during the exchange. The court held that the communication did not fall within the scope of Florida Rule of Criminal Procedure 3.410 and Hitchcock had failed to demonstrate anything more than harmless error. Harmless error was also found in Rose v. State, 425 So.2d 521 (Fla.1982), where the trial court, without notifying defense counsel, gave an “Allen charge” after the jury had deliberated seven hours.

In the case before us, appellant has failed to demonstrate prejudice as a result of the judge’s communication. Therefore, the error, if any, was harmless.

.AFFIRMED.

COBB, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

I concur in the result reached by the majority but I cannot agree with the requirement that the appellant must demonstrate some prejudice when an ex parte communication with the judge and jury occurs. In my opinion there was clearly no prejudice or even possible prejudice on account of the communication here. While I do not think a per se rule as suggested in Ivory is proper I also do not think there should be some burden on the parties, or either of them, to prove prejudice when an improper communication occurs. I think if the record shows there is a possibility that prejudice could have occurred then enough is shown to render the error not harmless.

      . Although there is some language suggesting that appellant may have abandoned this objection, we conclude that the issue was preserved for appeal.


text:
    Michael R. JENSEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-217.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

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

We affirm Jensen’s convictions and sentences for armed trespass and sexual battery. Jensen also argues on appeal that he was not given proper credit for jail time served prior to sentencing, pursuant to section 921.161(1), Florida Statutes (1981). This matter was not brought to the trial judge’s attention at sentencing, nor does the state concede that an error was made. Therefore, we expressly do not reach this issue on this appeal. In his discretion Jensen may file a motion pursuant to Florida Rule of Criminal Procedure 3.850 to correct this error in the lower court. Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981).

AFFIRMED.

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


author: WATSON, R.O., Associate Judge.

text:
    Michelle STEWART, Appellant, v. Melvin G. COLMAN, etc., Appellee.
    No. 83-336.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Charles T. Wells of Wells, Gattis, Hal-lowes & Carpenter, P.A., Orlando, for appellant.

      Ernest H. Eubanks of Pitts, Eubanks & Ross, P.A., Orlando, for appellee.
   WATSON, R.O., Associate Judge.

Appellant, Plaintiff, Michelle Stewart, appeals a summary judgment entered in favor of Appellee, Defendant, Melvin G. Col-man as Sheriff of Orange County, Florida.

Plaintiff and a friend were hitchhiking when they were picked up by a deputy sheriff and lectured about hitchhiking. Plaintiff and her friend had been drinking and taking quaaludes during the evening. When Plaintiff developed breathing difficulties the deputy summoned rescue.

When the ambulance arrived with two medics, Plaintiff was lying down and deputies were trying to restrain her. She was observed flailing her arms and yelling. After the medics tried unsuccessfully to calm her they tied her to a stretcher and placed her in the ambulance. The deputy in charge requested the medics to transport her to the hospital because he believed she needed medical attention. She was not placed under arrest and she was not being transported under the Baker Act.

One of the medics concluded Plaintiff had been hyperventilating. Shortly after the ambulance started to the hospital, Plaintiff calmed down and began breathing normally.

Before the ambulance arrived at the hospital, Plaintiff refused further medical assistance and repeatedly demanded to be released. Upon contacting the deputy in charge, the medics were told that Plaintiff was not being charged with a criminal offense and was not in custody under the Baker Act. At Plaintiffs request, she was released in the parking lot of a club where she worked. She said she would get a ride home. There is a dispute over whether the deputy in charge instructed the medics to “cut her loose” or whether she was released with the deputy’s knowledge. For the purposes of this appeal, the Court assumes the deputy in charge informed the medics to release her.

One of the medics observed Plaintiff enter the club. Plaintiff had denied being drunk or on drugs. She walked without difficulty, talked in a normal fashion, appeared to be natural and did not appear to be in need of medical treatment at the time of her release.

She was seen by a friend, the owner of another club, entering his club about 1:45 o’clock a.m. and yelling. She was wet and breathing heavily. When she exited the building and sat on the curb she stopped the heavy breathing. Her friend was trying to get her a ride when she reentered the club and told him she had a ride.

A customer left the club a little after 2:00 o’clock a.m. He proceeded out of the parking lot and traveled a short distance down Highway 50. When he heard a voice, he pulled off the highway and discovered Plaintiff lodged under his car.

Among others, Plaintiff sued the Sheriff of Orange County. Plaintiff claimed that the deputy in charge owed Plaintiff a duty to protect her because he had determined she was in need of emergency medical treatment and was unable to make rational decisions for herself. Plaintiff maintained the deputy breached that duty by permitting the medics to release her. Plaintiff further claimed that the breach of that duty by the deputy was a proximate cause of her injuries.

Plaintiff contends that the deputy took her into protective custody under the Myers Act, Section 396.072, Florida Statutes (1979). Under Section 396.072, a peace officer may take an intoxicated person to a hospital or treatment resource without that person’s consent only when that person appears to be intoxicated and incapacitated. Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981). Under the act, a person is deemed incapacitated when the person appears to be in immediate need of emergency medical attention, or when the person appears to be unable to make a rational decision about her need for care.

At the time of Plaintiff’s release from the ambulance, she no longer appeared in need of emergency medical attention and appeared to be able to make rational decisions about her need for care. Therefore, even if Plaintiff were taken into protective custody under the Myers Act, she no longer met the criteria and neither the medics nor the deputy had any authority to transport Plaintiff to the hospital against her will. Plaintiff was properly discharged from protective custody.

There are many obvious material differences between this case and Walston v. Florida Highway Patrol, 429 So.2d 1322 (Fla. 5th DCA 1983). Plaintiff was released in a location of her choice. She was not placed in a position of greater peril by the deputies. She was not in the custody of or under the control of the deputies at the time of the incident resulting in her injuries.

It is not necessary to determine the question of sovereign immunity because the deputy sheriff in charge did not breach any duty owed to Plaintiff.

The summary judgment is affirmed.

ORFINGER, C.J., and COWART, J., concur.


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

text:
    Mary FIELDS, etc., Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE CO., etc., et al., Appellee.
    No. 83-679.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Irvin A. Meyers of Meyers & Mooney, P.A., Orlando, for appellant.
    Mason H. Grower, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge. .

Fields appeals from an order dismissing this cause for lack of prosecution under Florida Rule of Civil Procedure 1.420(e).

We reverse because the record reflects activity prior to the motion to dismiss. Within the one year period before the motion to dismiss was filed, Fields perfected service of process on Florida Farm Bureau. Service of process upon a defendant constitutes record activity. Rivera v. A.M.I.F., Inc., 417 So.2d 304 (Fla. 3d DCA 1982).

REVERSED and REMANDED.

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


author: DAUKSCH, Judge.

text:
    DIXIE INSURANCE COMPANY, Appellant, v. Loretta FEDERICK, Appellee.
    No. 83-925.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

      Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellant.
    Walton B. Hallowes, Jr., of Wells, Gattis, Hallowes & Carpenter, P.A., Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order denying both relief from a judgment and a stay of execution. Under the terms of its insurance policy, appellant was only obligated to pay $10,000.00 of the $35,000.00 judgment. Apparently the insured was unable to pay the other $25,000.00 so the plaintiff went after the insurance company to collect it. Because the insurance company’s lawyers neglected to see to the original judgment being properly worded so as to limit the company’s liability and later failed to bring it to the court’s attention in a timely fashion, the trial judge ruled he lacked jurisdiction to grant relief. We are quite sympathetic with the position taken by the trial judge and note even the effort made in the last ditch attempt to save the situation could be deemed to have failed. However, we are moved to grant relief. We have decided to treat the insurance company’s last motion as sufficient under Rule 1.540(b) and reverse the decision of the trial judge, so as to render justice. The order denying relief is reversed and this cause remanded for further proceedings to correct the judgment.

REVERSED and REMANDED.

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


author: COBB, Judge.

text:
    Ricky Walter SPURLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1049.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The defendant appeals a probation revocation order. He contends the trial court lacked jurisdiction to revoke his probation based upon Clem v. State, No. 81-2248 (Fla. 4th DCA Aug. 31, 1983) [8 FLW 2135] (rehearing pending). Clem holds that a youthful offender sentenced to imprisonment and probation is on parole following his release from incarceration, therefore not subject to the trial court’s jurisdiction at that point. We reject Clem v. State, find the trial court had jurisdiction and affirm the revocation order. See Bowen v. State, 415 So.2d 142 (Fla. 5th DCA 1982) and Riley v. State, 407 So.2d 967 (Fla. 2d DCA 1981).

The defendant also asserts the trial court failed to give credit for time served. Because he did not raise this matter below, we reject his assertion, without prejudice to his right to present the issue to the trial court pursuant to Florida Rule of Criminal Procedure 3.850. See Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). In addition, the defendant may want to challenge, by a 3.850 motion, the five-year sentence of imprisonment, entered subsequent to revocation, as being in contravention of section 958.05(2), Florida Statutes (1981). See also Ellis v. State, 436 So.2d 342 (Fla. 1st DCA 1983), review denied, 443 So.2d 980 (Fla.1984).

Accordingly, the order of revocation is affirmed.

AFFIRMED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    David R. KANE, George F. Mann and Marvin H. Adler, Appellants, v. The AMERICAN BANK OF MERRITT ISLAND, Appellee.
    No. 83-1142.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.

      Charles M. Harris and Richard E. Stadler of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellants.
    John P. Ingle, III, and John L. Soileau of Spielvogel & Goldman, P.A., Merritt Island, for appellee.
   COBB, Judge.

The appellants, David R. Kane, George F. Mann and Marvin H. Adler, guarantors on a defaulted note payable in Brevard County, Florida, were personally served with process in New York, New Jersey and Illinois, respectively, pursuant to section 48.193(l)(g), Florida Statutes (1981). Appellants filed motions to quash the service, with affidavits attached to the motions showing that the guaranties were executed outside the state of Florida. The motions were denied, and this appeal ensued pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).

A preliminary issue is whether or not the legal presumption that a debt is to be paid at the creditor’s place of business, in the absence of an express designation of place of payment, is sufficient to satisfy the language of Florida’s long arm provision that refers to contractual acts “required” to be performed in Florida. We agree with our sister court, the Third District Court of Appeal, that this presumption satisfies the statute. See Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982). The statute, by its clear and unequivocal terms, fits the instant factual situation. A guaranty is a contract and appellants breached their contracts, which were required to be performed in Florida.

The real question is whether or not section 48.193(l)(g) applied to nonresident guarantors such as Kane, Mann and Adler, comports with constitutional due process under the fourteenth amendment of the United States Constitution. In urging a negative answer to this question, the appellants rely on Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), for the proposition that in order to justify long arm jurisdiction, “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” They contend that their executions of the guaranties do not constitute a “minimum contact” with the State of Florida as that term was defined in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). We note that even though a defendant comes within the nominal reach of the provisions of Florida’s long arm statute, he may still challenge jurisdiction on constitutional grounds. Pennington Grain & Seed, Inc. v. Murrow Bros. Seed Co., Inc., 400 So.2d 157 (Fla. 1st DCA 1981).

The argument of the appellee/bank for upholding the validity of the statute and the process effectuated upon the individual appellants is based upon the contact between the guarantors and the promisee as set forth in the appellee’s brief:

Who is the promise made to? To the Bank, in Florida. To whom was it delivered? To the Bank, in Florida. Who is being induced to rely upon the Guaranty? The Bank, in Florida. Who did, in fact, rely upon the Guaranty? The Bank, in Florida. So induced and so relying, to whom did the Bank loan money? To AADS, a Florida corporation, in Brevard County, Florida. Where was the loan so induced to be paid? To the Bank, in Florida. If AADS failed to pay, to whom did the Guarantor promise to pay? To the Bank, in Florida. Having failed to pay, where is the Guarantor being sued? In Florida, where the contract was breached.
These are more than sufficient “minimum” contacts with Florida. This portion of the International Shoe test, ... has been met. We next deal with the reasonable expectations of the Guarantors and the notion of “fair play”.
Anyone, especially experienced businessmen such as the Guarantors, who executes a Guaranty like the one involved here, has to have in mind the possibility that he will some day be called upon to honor his promise. He executed the Guaranty for the purpose of causing an effect — causing reliance and the extension of credit to the debtor. He succeeded, credit was extended, but now the debtor has defaulted, and the Guarantor is to be called upon to honor his promise. It is certainly within the reasonable expectations of the Guarantor that he will be called upon to honor his promise in the forum where he intended to cause an effect, where he did in fact cause an effect, where he promised to perform, and where he failed to perform.
Under these circumstances, it does not offend “traditional notions of fair play and substantial justice” for the Guarantor to be required to answer for his promises in a Florida forum. Rather, as the Supreme Court said in World-Wide Volkswagen, “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there.” (Emphasis in original.)

Other Florida appellate courts have upheld and applied section 48.193(l)(g) in situations where an out-of-state party to a contract requiring performance within this state has breached that contract. See Engineered Storage Systems, Inc.; Lacy v. Force V Corp., 403 So.2d 1050 (Fla. 1st DCA 1981); and Dublin Co. v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975); But see, Lakewood Pipe of Texas, Inc. v. Rubaii, 379 So.2d 475 (Fla. 2d DCA 1979), dismissed, 383 So.2d 1201 (Fla.1980), and Osborn v. University Society, Inc., 378 So.2d 873 (Fla. 2d DCA 1979). For that matter, so has this court, although that can be discerned only from the dissent. James Carroll Associates v. Video Applications, Inc., 421 So.2d 3 (Fla. 5th DCA 1982).

AFFIRMED.

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

      . Section 48.193(l)(g) provides:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

      (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.

      . The case reference is to World-Wide Volkwagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).


author: NIMMONS, Judge.

text:
    George Bernard SHAW and Cleveland Sweetson Shaw, Appellants, v. STATE of Florida, Appellee.
    Nos. AT-201, AT-202.
    District Court of Appeal of Florida, First District.
    May 10, 1984.

      John T. McKnight, Brunswick, Ga., for appellants.
    Jim Smith, Atty. Gen., and Andrea Hil-lyer, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

George Shaw and his brother, Cleveland Shaw, appeal from an order denying their motion to suppress marijuana found in an automobile owned by Cleveland and driven by George. We affirm.

Florida Highway Patrol Trooper Sellars stopped the appellants’ station wagon for speeding while proceeding west on Interstate 10 in Jefferson County. The driver’s license presented by George was in the name “John Paul Webb.” Trooper Sellars had not received a response from the NCIC/FCIC computers by the time he had finished ticketing George for speeding. However, shortly after George, Cleveland and a third occupant of the station wagon were allowed to leave, Sellars received information that a John Paul Webb, whose description fit George, was wanted on federal warrants in New York for bribery of a U.S. Customs official and conspiracy to smuggle marijuana, and on a Florida warrant for indecent exposure in Broward County.

Sellars then overtook and stopped the station wagon, still being driven by George, approximately 15 miles down the highway from the initial stop and placed George under arrest on the above warrants. George was frisked, handcuffed and placed in the front seat of the patrol car. Trooper Stallworth then arrived on the scene to assist and was asked to check the other two occupants of the station wagon. At Stallworth’s request, Cleveland and the other occupant exited the vehicle, Stall-worth “patted” them down and had them step to the rear of the station wagon. The officers learned from George that one of his two companions was the owner of the vehicle. Cleveland then said that the vehicle belonged to him. Stallworth asked Cleveland if he would consent to a search of the vehicle. Stallworth advised Cleveland that if he did not wish to consent, they would try to obtain a search warrant. Cleveland and the third occupant shrugged their shoulders and said that they did not care.

The search of the passenger compartment of the station wagon revealed two large, sealed U-Haul boxes which were situated in the back of the station wagon. After the officers received conflicting stories from the three occupants concerning the contents of the boxes, the officers proceeded to open them and discovered 102 pounds of marijuana. Cleveland and the third occupant were then arrested. It was not until later that the officers learned that George Shaw was not really John Paul Webb, the person whose name appeared on the driver’s license produced by George.

In a brief order, the trial court denied the defendants’ motion to suppress, citing as authority New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The trial court further ruled that George lacked standing to contest the search.

On appeal, appellants contend that both appellants had standing to contest the search, that Cleveland’s consent to search the vehicle was not a voluntary consent, and that the search of the vehicle was not a valid search incident to George’s arrest since George had been handcuffed and placed in the officer’s vehicle before the search was conducted.

We are of the view that the search of the boxes situated in the passenger compartment of the station wagon was a valid search incident to George’s arrest under the Supreme Court’s holding in New York v. Belton, supra. We, therefore, need not decide the issues as to: (1) whether George, who offered no evidence of any interest in either the vehicle or the boxes, had the requisite standing under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), to object to the search (we will assume, without deciding, that George had standing), and (2) whether Cleveland’s consent was voluntary (we will assume, without deciding, that this was not a valid consensual search).

Clearly, George was lawfully placed under arrest. Appellants do not contend otherwise. In Belton, the Supreme Court reversed the New York Court of Appeals which had held invalid a search of the defendant’s jacket situated inside his automobile on the grounds that the defendant had been removed from his vehicle, that he was under arrest and being securely held in custody and that there was no longer any danger that he might gain access to the vehicle’s contents. The Supreme Court, in reversing, stated:

While the Chimel case [Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034] established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of “the area within the immediate control of the arrestee” when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].” Chimel, 395 U.S., at 763, 23 L.Ed.2d 685, 89 S.Ct. 2034 [2040]. In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427], supra; Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

453 U.S. at 460, 461, 101 S.Ct. at 2864.

In Chapas v. State, 404 So.2d 1102 (Fla.2nd DCA 1981), the driver of an automobile was validly arrested for driving while intoxicated and placed in a police vehicle after which his ear was searched. The Second District observed:

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

404 So.2d at 1104. See also State v. Zimmerman, 413 So.2d 838 (Fla.lst DCA 1982) (defendant handcuffed and inside police car at time of vehicle search); Patterson v. State, 402 So.2d 1190 (Fla.5th DCA 1981); compare State v. Vanderhorst, 419 So.2d 762 (Fla.1st DCA 1982) (facts did not reveal that arrestee was recent occupant of vehicle).

The fact that George was the only one of the three who was under arrest at the time of the search does not make the search of the vehicle any less valid insofar as the rights of Cleveland and the third occupant are concerned. The lawful arrest of only one occupant will support a Belton search of the vehicle. Moreover, there is even greater justification for a protective search where the officers, at the time of the search, know that the arrestee’s companions, with respect to whom no grounds then exist for arrest or further detention, will probably be allowed reentry into the passenger compartment of the vehicle with resultant access to any weapons which might be present. Cf. Michigan v. Long, — U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Stevens v. State, 354 So.2d 110 (Fla.3rd DCA 1978); but cf. Dilyerd v. State, 444 So.2d 577 (Fla.5th DCA 1984).

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Neither defendant testified at the hearing on the motion to suppress.


text:
    Joe Louis OWENS, Appellant, v. Rose Tyson HAYES, Appellee.
    No. AU-120.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Robert C. Palmer, III, of Harrell, Wilt-shire, Stone & Swearingen, Pensacola, for appellant.
    James A. Johnston, Pensacola, for appel-lee.
   PER CURIAM.

AFFIRMED. See Speight v. Ft. Walton Beach, 180 So.2d 385 (Fla. 1st DCA 1965).

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: MILLS, Judge.

text:
    Jack YOUNG, Appellant, v. Kathryn YOUNG, Appellee.
    No. AV-29.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Frank H. Hendrix of Amos & Hendrix, Fort Walton Beach, for appellant.
    Patricia S. Warren, Fort Walton Beach, for appellee.
   MILLS, Judge.

In this dissolution action, Jack Young appeals from the trial court’s order modifying the final judgment. He contends the trial court erred in awarding permanent periodic alimony to his ex-wife, Kathryn Young. We agree and reverse.

In the first appeal of this case, this Court reversed the final judgment because the permanent periodic alimony award of $250 monthly was “based on the unique costs of maintaining the former marital home and is not related to Kathryn’s general housing need.” Young v. Young, 431 So.2d 234, 235 (Fla. 1st DCA 1983). On remand, the trial court reduced the award from $250 to $175 monthly and removed the condition that Kathryn remain in the former marital home to receive permanent periodic alimony.

The permanent periodic alimony award is no longer based on the unique costs of maintaining the former marital home and, therefore, is not erroneous for the reason given in the opinion resulting from the first appeal. Nevertheless, after reviewing the award in terms of Kathryn’s need for support and Jack’s ability to provide support, we conclude the permanent periodic alimony award was an abuse of discretion.

After twenty-one years of marriage, Kathryn filed for divorce. At the time of the final hearing, she was forty-seven years old, in good health, securely employed, and had been for the past nine years, as a secretary with the federal government earning a gross salary of $1,376 monthly. She also received approximately $65 monthly from a coin-operated video game she purchased as an investment. Her assets included $3,700 in checking and savings accounts, a collection of porcelain and china valued at $8,500, the video game purchased for $3,500, and a car valued at $800. In addition, the trial court awarded Kathryn exclusive possession of the former marital home. Kathryn must pay all expenses on the house but will receive a special equity for principal, interest, taxes, and insurance payments when the house is sold. Kathryn’s only other financial liability was $1,600 still owed on the video game.

Jack was 50 years old at the time of the final hearing, retired from military service, and receiving a pension of $817 monthly. He also received approximately $200 monthly for part-time carpentry work. Apart from his interest in the former marital home and certain shares of stock held jointly by Jack and Kathryn, Jack’s only asset was a truck valued at $3,500. His financial affidavit shows liabilities totaling $5,600. Jack and Kathryn have no minor children.

As this Court said in the first appeal of this case:

Permanent alimony is justified to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the parties, with the two primary elements to be considered being the needs of one spouse for the support and the ability of the other spouse to provide the necessary support. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

Young v. Young, 431 So.2d 234, 235 (Fla. 1st DCA 1983). Kathryn’s income, assets, and liabilities put her in such a superior financial position to Jack that the trial court’s award of permanent periodic alimony failed the test of reasonableness described in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), and consequently was an abuse of discretion. See also Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973).

REVERSED and REMANDED for proceedings consistent with this opinion.

SMITH and NIMMONS, JJ., concur.


text:
    Ronnie Eugene CHAPLIN, Appellant, v. STATE of Florida, Appellee.
    No. AV-381.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Louis O. Frost, Jr., Public Defender, and Mark G. McConnell, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982); Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.


text:
    Faheem Saleem RASHEED, Appellant, v. STATE of Florida, Appellee.
    No. AX-177.
    District Court of Appeal of Florida, First District.
    May 10, 1984.

      Faheem Saleem Rasheed, pro se.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks to raise an issue by motion for post conviction relief, Florida Rule of Criminal Procedure 3.850, which could properly have been litigated during the trial proceedings and reviewed upon direct appeal. Appellant's direct appeal was exhausted by this Court’s affirmance of his conviction and sentence for burglary and grand theft in Rasheed v. State, 433 So.2d 522 (Fla. 1st DCA 1983).

We affirm the trial court’s denial of relief as appellant’s single issue involved whether the circumstantial evidence presented at his trial was sufficient to support a finding of guilt, an issue not cognizable through collateral attack, see Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla. 1980), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983).

ERVIN, C.J., and THOMPSON and WIG-GINTON, JJ., concur.