text:
    Antone MACCORONE and Victoria Maccorone, his wife, Appellants, v. RINKER MATERIALS CORPORATION, a Florida Corporation, Appellee.
    No. 83-2374.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.

      Paul L. Driver, Jr., Fort Lauderdale, for appellants.
    Gary L. Yonhof of Johnson & Bakst, P.A., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellants, Maccarone, appeal a final judgment entered in a mechanics’ lien action awarding to appellee, Rinker, $60.60 in damages, $91.50 court costs and $150.00 in attorney’s fees. The issue on appeal is whether the underlying transaction was exempt from the Mechanics’ Lien Law.

In 1982 appellants entered into an oral contract with one Bob Strunk to perform concrete slab work on property owned by appellants for a price of $1,102.82. Appellants intended eventually to build a home on the property. Upon completion of the slab work, Strunk was paid in full by appellants.

Rinker supplied concrete for the price of $860.60. Rinker was not paid by Strunk. In 1983 Rinker instituted proceedings to foreclose its mechanics’ lien. Notice to Owner and Claim of Lien had been timely filed. An $800 payment was made prior to trial (apparently by Strunk), leaving a balance due of $60.60. Rinker continued the litigation, demanding costs and attorney’s fees.

Appellants’ sole defense was that their property is exempt from Part I of the Mechanics’ Lien Statute pursuant to Section 713.02(5), Florida Statutes (1983), since the contract price was for less than $2,500, and Section 713.05 permits recovery only if the owner is in privity with the materialman. Rinker responds that the exemption for contracts less than $2,500 relates to additions to existing structures rather than to the construction of entire structures.

The trial court held that the exemption was not applicable to this case, and thus found in favor of Rinker.

Section 713.02(5), Florida Statutes (1983), provides that “[a]ny improvement for which the contract price is $2,500 or less shall be exempt from all other provisions of this part I [relating to mechanics’ liens] except the provisions of s. 713.05 [relating to liens of persons in privity].” An “improvement” means “any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.” § 713.01(8), Fla.Stat. (1983) (emphasis added). “ ‘Contract price’ means the amount agreed upon by the contracting parties for performing all labor and services and furnishing all materials covered by their contract_” § 713.01(3), Fla.Stat. (1983). We find no cases interpreting this provision. However, we consider the following persuasive:

Prior to October 1, 1978, an owner’s property was exempt from mechanics’ liens of non-privity lienors where repair or remodeling improvements were made. This is because § 713.02(5) (1977) provided an exemption where an improvement was made to an existing improvement costing $500.00 or less.
In 1978, the Florida legislature amended the exemption contained in § 713.-02(5). § 713.02(5) eliminated the phrase “to an existing improvement.” Presently, any improvement within the monetary limits of § 713.02(5) is exempt from liens of non-privity lienors, even though it is independent of existing improvements.

2 Florida Mechanics’ Lien Manual § 23.-01(B)(1) (emphasis added and footnote omitted). See also, Note, Mechanics’ Lien, 33 U.Miami L.Rev. 1103 (1979).

The obvious purpose of the exemption is to protect the property owner in small transactions from liens accruing to the benefit of individuals with whom he has had no contact. Under such circumstances the materialman or subcontractor is in a much better position to protect his own interest than is the property owner who probably knows nothing about mechanics’ liens. Thus, we accept appellants’ position. The concrete slab work was for a contract price less than $2,500. Moreover, appellants and Rinker are not in privity. Therefore, appellants’ property is exempt from the mechanics’ lien law.

Because Section 713.02(5), Florida Statutes (1983) unambiguously exempts appellants’ property from Rinker’s claim of lien, the final judgment of the trial court is reversed and the cause remanded for the determination of a reasonable attorney’s fee to be awarded appellants, the prevailing parties below and on this appeal.

REVERSED AND REMANDED.

GLICKSTEIN and DELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Darrell THEDFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-2609.
    District Court of Appeal of Florida, • Fourth District.
    Aug. 1, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The imposition of costs is stricken without prejudice to reimposing costs upon compliance with Jenkins v. State, 444 So.2d 947 (Fla.1984). In all other respects we affirm the conviction and sentence.

LETTS, HERSEY and HURLEY, JJ., concur.


text:
    Loretta LEMERAND d/b/a Lore Leasing, Appellant, v. Robert T. HELD, Jr., and John T. Stamn, Appellees.
    No. 84-179.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Charles D. Hood., Jr. of Cobb & Cole, P.A., Daytona Beach for appellant.
    J. David Lynch of Andrews, Lubbers & Lynch, P.A., and Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Laud-erdale, for appellees.
   PER CURIAM.

We remand with direction to the trial court to correct the final judgment by adjudicating the indebtedness recited in paragraph G of the parties’ joint stipulation dated October 21, 1983.

In all other respects we affirm the final judgment.

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


author: WALDEN, Judge.

text:
    Michael T. PETERSON, and James Blake Beeson, Petitioners, v. STATE of Florida, Respondent.
    No. 84-411.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Diane E. Marger, Fort Lauderdale, for petitioner-Peterson.
    Edwin Marger, Atlanta, Ga., for petitioner-Beeson.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for respondent.
   WALDEN, Judge.

This is a petition for common law certio-rari brought by Peterson and Beeson. They were twenty (20) and nineteen (19) years of age, respectively, at the time they were arrested for trafficking in cocaine. They moved for a determination of youthful offender status pursuant to Section 958.04(2)(a)-(g), Florida Statutes (1983). Ultimately, the trial court ordered:

The Court finds that it is premature at this time to make a determination regarding the Defendants’ status as youthful offenders pursuant to Chapter 958, Florida Statutes.
The Court finds that the provisions of Chapter 958, Florida Statutes, supersede and pre-empt the minimum mandatory sentencing provisions provided for in Fla. Stat. § 893.135.

The issue now presented is whether the trial court must conduct a pre-plea or pretrial hearing and there determine whether a defendant will be sentenced as a youthful offender under the Youthful Offender Provisions of Section 958.04, Florida Statutes (1983). In other words, these defendants want to know, before they enter a plea or go to trial, if they will be treated as youthful offenders. We hold that the trial court is not required to conduct such hearing. Thus, we deny the petition for certiorari.

Eligibility for youthful offender classification is established pursuant to Section 958.04, Florida Statutes (1983):

958.04. Eligibility for youthful offender classification
(1) The court may classify as a youthful offender any person: (emphasis added).
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and (emphasis added)
(c) Who has not previously been classified as a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified as a youthful offender under this act.
(2) The following criteria shall be considered in determining whether to classify as a youthful offender a person who meets the requirements of subsection (1):
(a) The seriousness of the offense to the community and the protection of the community;
(b) Whether the offense was committed in an aggressive, violent, premeditated, or willful manner;
(c) Whether the offense was against persons or property;
(d) The sophistication and maturity of the defendant, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living;
(e) The record and previous history of the defendant, including:
1. Previous contacts with the department, the Department of Health and Rehabilitative Services, other law enforcement agencies, and courts;
2. Prior periods in a community control program;
3. Prior violations of law; and
4. Prior commitments to institutions;
(f) The likelihood of reasonable rehabilitation of the defendant if he is assigned to youthful offender services and facilities; and
(g) Whether classification would:
1. Reflect the seriousness of the offense, promote respect for law, and provide just punishment for the offense; and
2. Provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

Neither side has shown us, and we have not found, any case or other authority that bears on the present issue.

We read and interpret the statute as being permissibly applicable in the discretion of the trial court. As concerns a defendant seeking such youthful offender status, it is somewhat a matter of grace. We hinge this upon the general language of the statute and particularly the opening or threshold language, “The Court may classify as a youthful offender any person.” Had the legislature intended mandatory application we feel that the act well may have provided, “The Court shall, etc.”

At what point in time should the trial court consider the question of youthful offender classification? Clearly, the critical provision is found in Section 958.04(l)(b), Florida Statutes (1983), which provides that the trial court may classify as a youthful offender any person “who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime ...”. This provision governs and is exactly opposite to Petitioners’ contention. Thus, we hold that the determination shall be made, by statutory mandate, subsequent to an adjudication of guilt or the trial court’s acceptance of a guilty or nolo contendere plea. We see no basis whatever for re-writing the statute to conform with Petitioners’ wishes.

Petition for writ of certiorari is

DENIED.

DOWNEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    ST. LAWRENCE COMPANY, N.V., a Netherlands Antilles corporation, Appellant, v. ALKOW REALTY, INC., a Florida corporation, Bernard Felson and Karen Moraitis Realty, Inc., a Florida corporation, Appellees.
    No. 84-503.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    James 0. Murphy, Jr., of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    Harris K. Solomon of Brinkley, McNer-ney & Morgan, Fort Lauderdale, for appel-lees.
   HERSEY, Judge.

In this dispute over a real estate broker’s commission, appellee-brokers obtained a temporary mandatory injunction restraining the seller (appellant) from disbursing $250,000 (the amount of commission in controversy) from the proceeds of the sale until further order of the court, which injunction occasioned the present appeal from a non-final order.

The order is plainly wrong. This was an action to recover money damages upon a claim of breach of an oral contract to pay money, that is: a commission. Such a cause of action does not entitle the claimant to equitable relief simply because the complaint alleges uncertainty of collectibility of a judgment if a fund of money is permitted to be disbursed. The test of the inadequacy of a remedy at law is whether a judgment could be obtained, not whether, once obtained it will be collectible. Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979). (We disagree that Oxford should be as narrowly applied as appellees contend.) An action for a brokerage commission is an action at law. Lake Placid Holding Co. v. Paperone, 414 So.2d 564 (Fla. 2d DCA 1982). An action at law is not transformed to one in equity simply by requesting an injunction. Supreme Service Station Corp. v. Telecre-dit Service Center, Inc., 424 So.2d 844 (Fla. 3d DCA 1982). Either prejudgment attachment or garnishment, with attendant safeguards, may be available to appellees under these circumstances; injunctive relief is not. We reverse.

REVERSED and REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    Virginia A. McCORMICK, f/k/a Virginia A. Norman, Appellant, v. Dennis NORMAN, Appellee.
    No. 83-581.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.
    Ernest S. Marshall, Bradenton, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the trial court’s order enforcing an Ohio child custody modification decree but otherwise declining to exercise modification jurisdiction over this matter. See §§ 61.1328 and 61.133, Fla.Stat. (1981). We agree with the trial court’s conclusion that appellant should exhaust her legal remedy in the state of Ohio through disposition of her pending motion for rehearing and by possible appeal from any adverse ruling. See § 61.1314, Fla.Stat. (1981). Under the particular circumstances presented, appellant has failed to demonstrate reversible error, or a gross miscarriage of justice resulting from the manner in which the trial court reached its findings.

AFFIRMED.

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


author: RYDER, Chief Judge.

text:
    Maureen S. LAROUERE, Appellant, v. James U. LAROUERE, Appellee.
    No. 83-1751.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.
    Everett Q. Jones, Tampa, for appellant.
    W. Craig Hall and Albert M. Salem, Jr. of Salem, Musial & Morse, P.A., Tampa, for appellee.
   RYDER, Chief Judge.

From the record before us, we hold that there was no error in the trial court proceedings. The trial judge did not abuse his discretion and he made a proper decision. Canakaris v. Canakaris, 382 So.2d 1197, 1202-1203 (Fla.1980); Monnar v. Monnar, 422 So.2d 362 (Fla. 3d DCA 1982); Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980). Although the marital property was distributed according to the formula set forth in Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981), it comports with that formula approved in Landay v. Landay, 429 So.2d 1197 (Fla.1983).

AFFIRMED.

DANAHY and SCHOONOVER, JJ., concur.


author: BOARDMAN, Judge.

text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-31.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant Michael Williams challenges his judgment and sentence for burglary with assault under section 810.02(2)(a), Florida Statutes (1983). For the reasons discussed below, we affirm.

We reject appellant’s assertion that he was prejudiced by the filing of an amended information twelve days before trial which deleted reference to the specific offense which appellant allegedly intended to commit within the burglarized premises. As the supreme court noted in State v. Waters, 436 So.2d 66 (Fla.1983), it is not per se required that a burglary charge specify the particular offense which the accused allegedly intended to commit within the premises, but the prosecution must furnish this specificity “before the case goes to trial if timely requested by the defendant.” Id. at 69. Accord Bennett v. State, 438 So.2d 1034, 1035 (Fla. 2d DCA 1983). Appellant’s failure to request such specificity in the time remaining before trial certainly undermines his contention that he deemed such information crucial to his defense. We also note that appellant did not request a continuance or engage in any discovery in response to the amended information. These considerations, coupled with a record which fails to demonstrate any prejudice whatsoever, mandate affirmance on this issue.

We also find no merit in appellant’s contention that he was prejudiced by the trial court’s imposition of a forty-five minute time limitation for each side’s closing argument. Under the facts and circumstances presented, we do not consider this limitation unreasonable. See McDuffee v. State, 55 Fla. 125, 46 So. 721 (1908).

Finally, the record supports the state’s assertion that the trial court merely recommended the imposition of attorney’s fees as a condition of parole. Because a trial court is not precluded from making such a recommendation, Alexander v. State, 425 So.2d 1197, 1198 (Fla. 2d DCA 1983), appellant’s third point on appeal also demonstrates no reversible error.

In reviewing the written judgment rendered in this case, we could not help but note that it designates section “755.087(1)-1,” Florida Statutes (1983), as one of the statutes violated by appellant’s criminal conduct. This reference obviously is typographically incorrect as well as legally inconsistent with both the jury’s verdict and the lawful sentence actually imposed. Accordingly, we strike this apparent clerical error. We affirm appellant’s judgment and sentence in all other respects.

RYDER, C.J., and HOBSON, J., concur.


author: OTT, Judge.

text:
    Jerry Maurice WARD, Appellant, v. STATE of Florida, Appellee.
    No. 84-665.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Defendant appeals from a conviction of grand theft. We find that the trial court erred in refusing to suppress the stolen items as the product of an unlawful stop and remand to the trial court.

In a pretrial motion, defendant moved to suppress the stolen property as the fruit of an illegal stop. At the suppression hearing, the arresting officer testified that he observed defendant and a companion walking along Marsh Avenue just north of Ballard Road in Fort Myers, Lee County, Florida. According to the officer, the general vicinity including a school had been recently victimized by burglaries. After approximately forty-five seconds of observation, he stopped the men out of fear for the safety of the businesses, school building, and residences in the area. The officer admitted that the men’s behavior was not unusual or incongruous during the short observation period. During the stop, defendant supplied the officer with a false name and birthdate. Defendant was then arrested on an obstruction of justice charge. During the booking process on that charge, items were discovered under defendant’s hat that led to the instant grand theft charge and conviction.

The sole basis for the stop was defendant’s presence at midnight in an area recently victimized by burglaries. In State v. Levin, 452 So.2d 562 (Fla.1984), the supreme court disapproved this court’s holding in Boal v. State, 368 So.2d 71 (Fla. 2d DCA 1979), making it abundantly clear that these two factors, standing alone, are insufficient to justify even an investigative stop under section 901.151, Florida Statutes (1983).

Nothing that transpires after the initial stop can be used to validate the unlawful stop. See Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976), petition for review dismissed, 347 So.2d 432 (Fla.1977).

The trial court erred in not granting defendant’s motion to suppress the property underlying the grand theft charge. Accordingly, we REVERSE defendant’s conviction of grand theft, SET ASIDE the sentence, and REMAND to the trial court for proceedings consistent with this opinion.

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


text:
    Carl T. BYRUM, Appellant, v. STATE of Florida, Appellee.
    No. 82-1442.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Segura v. United States, — U.S. —, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

COBB, C.J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


author: DAUKSCH, Judge.

text:
    James G. HULL, D.O., et al., Appellants, v. The BOARD OF COMMISSIONERS OF the HALIFAX HOSPITAL MEDICAL CENTER, et al., Appellees.
    No. 83-74.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.

      Davisson F. Dunlap and William D. Palmer, of Carlton, Fields, Ward, Emmanuel, Smith & Cutter, P.A., Orlando, for appellants.
    Harold C. Hubka, Daytona Beach, and Charles M. Daniels, of Daniels, Butman & Pomerantz, P.A., Fort Lauderdale, for ap-pellees.
   DAUKSCH, Judge.

This is a timely appeal from a final judgment and an order denying appellant’s motion for rehearing. The judgment adjudicated a bylaw of the medical staff at Halifax Hospital Medical Center constitutional and not violative of Section 395.0653, Florida Statutes (1979).

Appellants, doctors of osteopathy located in Volusia County, filed a complaint against appellees, members of the Board of Halifax Hospital, alleging that a bylaw which set forth criteria and eligibility requirements for medical staff membership, was in violation of Section 395.0658, Florida Statutes (1979). Halifax Hospital is a public facility licensed by the state of Florida. Count I of the complaint sought a declaratory judgment that the bylaw enacted by the hospital in 1979, and amended in 1980, was viola-tive of Section 395.0653, Florida Statutes. Count II sought a temporary and then permanent injunction against the bylaw and prayed for damages. Count III alleged a conspiracy by the hospital to prevent competition of appellants with the medical doctors now on staff at Halifax Hospital. Count IV charged that the bylaw violates the right of appellants under Article I, Sections 2 and 9 of the Florida Constitution. The conspiracy charge was dismissed prior to trial.

The trial judge issued an order bifurcating the issues on liability and damages, and ruled that these issues would be tried separately. A non-jury trial was held on the issue of liability. The court entered a final judgment holding that the bylaw did not violate the statutory or constitutional rights of appellants as a class. Furthermore, the court determined that individual claims for damages would be denied because none of the named plaintiffs had exhausted their administrative remedies. Appellants filed a Motion for Rehearing. This motion was denied.

The following is a brief description of some of the facts presented at trial. Appellants (plaintiffs below) are all doctors of osteopathy which comprise roughly one-eighth of all doctors in the Volusia County area. Each plaintiff is a graduate of a school of osteopathic medicine and each is licensed to practice in this state. Appellants have different levels of postgraduate training and are either board eligible or board certified in their specialties by the American Osteopathic Association (AOA) or its respective certifying bodies. Board eligibility with reference to the AOA means the individual has completed specific requirements of the Osteopathic Board and has not yet taken and passed the exam. Halifax Hospital is a regional facility which has some of the best facilities in the area. The hospital provides services and contains equipment that are not available at any of the other local hospitals. Appellants contend that they are precluded from practicing in certain areas of medicine because they do not have access to these unique facilities. They say the hospital offers services in obstetrics, neurosurgery, pediatrics, chemotherapy, and radiation therapy — none of which is available at any other hospital in the area.

The court below specifically found that Halifax Hospital could and did discriminate against osteopaths solely on the basis of their licensure prior to the passage of Section 395.0653, Florida Statutes, in 1979. The 1979 Statute, however, prohibited this type of discrimination and required that hospitals establish one set of criteria and apply it equally to all applicants. In December of 1979, Halifax Hospital responded to the statutory pronouncement and passed the bylaw at issue here requiring that an applicant must hold an unlimited license to practice medicine or osteopathy in this state, and the applicant must also have completed a residency program sufficient to be currently eligible for, or be already certified by, a specialty board approved by the American Board of Medical Specialties (ABMS). The AOA certifying boards and the AMBS boards are totally independent and in some cases the AMBS will certify doctors of osteopathy that have taken AOA certified residencies or internships but in seven specialty areas it does not. This bylaw was amended in March of 1980 so as to permit a doctor of osteopathy (D.O.) to be considered for a position on the medical staff in those cases where specialty residency programs approved by the AMBS would not accept graduates of schools of osteopathic medicine. There was testimony adduced at trial that the above amendment allowed previously ineligible applicants, because of AMBS preclusion, to be considered on the basis of having received equivalent training in spite of the fact that they could not be certified by the AMBS board.

The evidence presented at trial also shows that since the passage of the bylaw, two D.O. applicants have been granted staff privileges at Halifax Hospital and a third is expected to be approved shortly. Prior to the 1979 statute, no doctors of osteopathy had been granted privileges at the hospital. However, it is estimated that there are currently only three D.O.’s that are M.D. board certified and only one osteopath that is M.D. board eligible, out of a possible forty-two D.O.’s within the surrounding area.

Appellants argue that the bylaw adopted by Halifax Hospital setting forth the qualifications for membership on its medical staff specifically discriminates against doctors of osteopathy and is therefore in violation of Section 395.0563, Florida Statutes (1979). Section 395.0563, Florida Statutes, provides in pertinent part:

Use of Hospital and Staff

(1) Any hospital licensed under this chapter in considering and acting upon applications for staff membership or professional clinical privileges shall not deny the application of a qualified doctor of medicine licensed under chapter 458, doctor of osteopathy licensed under chapter 459, doctor of dentistry licensed under chapter 466, or doctor of podiatry licensed under chapter 461 for such staff membership or professional clinical privileges within the scope of his respective licensure solely because the applicant to licensed under any of said chapters.
(2) Nothing herein shall restrict in any way the authority of the medical staff of the hospital to review for approval or disapproval all applications for appointment and annual reappointment to all categories of staff and make recommendations on each to the governing authority, including delineation of privileges to be granted in each case. In making such recommendations and delineation of privileges, each applicant shall be considered on an individual basis pursuant to criteria applied equally to all other disciplines, (emphasis added).

Appellants contend further that by requiring applicants for staff positions to be M.D. board certified or eligible, the hospital has totally eliminated from consideration those osteopaths who practice in specialties which do not allow osteopaths to become board eligible or do not allow osteopaths into their M.D. residency programs. Furthermore, the bylaw precludes most osteopaths from being able to meet the threshold requirements for eligibility since most of them have taken D.O. residency training rather than M.D. residency training. Consequently, it is argued that the bylaw is in violation of Section 395.0653, Florida Statutes, because it discriminates against osteopaths because of their education and training. We do not find these arguments compelling and therefore hold that the Halifax Hospital bylaw is in compliance with the statute.

Prior to the adoption of the 1979 statute, it was permissible for hospitals to routinely exclude osteopaths from their staffs by requiring all staff members to be graduates of medical schools approved by the American Medical Association. See Taylor v. Horn, 189 So.2d 198 (Fla. 2d DCA 1966); Richardson v. City of Miami, 144 Fla. 294, 198 So. 51 (1940); 37 A.L.R.3d 645, 674. However, Section 395.0653, Florida Statutes (1979) was specifically passed to remedy this practice of discriminating against osteopaths solely on the basis of their training. See Hackett v. Metropolitan General Hospital, 422 So.2d 986 (Fla. 2d DCA 1982); Sarasota County Public Hospital Bd. v. Shahawy, 408 So.2d 644, 646 (Fla. 2d DCA 1981). As the judge in the court below stated:

[This Statute] prohibits restrictions] based on licensure. [It] specifically mandates that a hospital establish one set of criteria, and apply it equally to all applicants, regardless of discipline. As a result, hospitals can no longer deny admission to an applicant because he is a D.O. and not a M.D.

In the case sub judice, the bylaw sets forth standards which the hospital deems are higher than those required for licen-sure by the state. In an attempt to raise the quality of the health care it accords its patients, Halifax Hospital requires all its doctors to be M.D. board certified or eligible regardless of what type of medical training the doctors engaged in. Appellants contest that the net effect of such a policy is to preclude a large percentage of osteopathic doctors from consideration for staff privileges because of the characterization of their training rather than the quality of their training and thereby violates subsection (1) of Section 395.0653, Florida Statutes (requiring that doctors of osteopathy not be denied hospital staff admission solely due to the fact that they are D.O.’s). Furthermore, appellants allege there are no mechanisms available for an osteopath to convince the hospital that AOA training is equivalent to or better than M.D. training.

The uncontroverted facts presented at trial, however, suggest that the bylaw has had the effect of excluding both doctors of osteopathy and medical doctors equally. In fact, the bylaw has excluded a larger number of medical doctors than it has osteopaths. In addition, prior to the adoption of this bylaw, no osteopath had been admitted on the medical staff at Halifax but, since its enactment, two have been accepted, and a third is expected to join the staff shortly. Clearly then, the bylaw has been applied equally to the doctors of osteopathy and medical doctors and the bylaw is not violative of Section 395.0653(1), Florida Statutes.

Appellants further contend that subsection (2) of the applicable statute (requiring that each applicant be considered on an individual basis pursuant to criteria applied equally to all other disciplines) places a duty on the hospital to consider the qualifications of each applicant regardless of his or her prior training and experience. The trial court disagreed, however, and interpreted this section to mean that it only requires that uniform standards be applied equally. We agree with the trial court. In determining that the threshold requirements of the bylaw were reasonable, and there being no equivalency provision in the 1979 statute, there is no necessity for the hospital to individually determine the nature of an applicant’s training when the minimum requirements of the bylaw have not been met. Such a conclusion is unwarranted where, as here, the statute is clear on its face. Therefore, the fact that the hospital did not make a detailed evaluation of every applicant who did not meet the basic minimum requirements of the bylaw does not make the hospital in violation of subsection (2) of Section 395.0653, Florida Statutes.

Appellants also raise the issue that the standards adopted in the bylaw (requiring medical board eligibility or certification) were not found by the hospital to be reasonably related to the quality of health care sought to be provided. There was conflicting testimony in the record regarding the extent to which the board of the hospital compared the training provided by the two disciplines. However, there is more than enough evidence in support of the trial court’s conclusion that the criteria adopted by the Board were reasonable and that the hospital acted with the motivation of trying to provide the highest quality health care possible. Appellants’ argument that the hospital failed to determine prior to enacting the bylaw that the medical training of medical board certification was inherently superior than the training provided by the osteopathic boards is irrelevant. Clearly, there is no provision in the statute requiring such a determination to be made in deciding what criteria to impose for staff membership. Further, we are impressed by the relatively recent exposure of the number of incidents of malpractice by health care providers, and know that all that can be done by way of improvement and raising of standards can have nothing but a beneficial effect for all concerned; providers of health care as well as recipients.

The trial court did not err in holding that the instant bylaw did not violate subsections (1) or (2) of Section 395.0653, Florida Statutes. The evidence supports the trial judge’s determination that doctors of osteopathy applying for staff positions at Halifax Hospital were not denied admission solely because they were D.O.s. Furthermore, the procedure adopted by the hospital to individually evaluate the qualifications of those doctors of osteopathy meeting the threshold requirements of the bylaw were adequate under the statute.

Equally without merit is appellants’ contention that the bylaw at issue in its terms and application violates the due process and equal protection clauses of the Florida Constitution. There is no constitutional right recognized in Florida for a physician to practice in a particular hospital. North Brevard Hospital District v. Mizell, 148 So.2d 1 (Fla.1962); West Coast Hospital Association v. Hoare, 64 So.2d 293 (Fla.1953). A public hospital also has the right to require a physician to comply with higher standards than those required by the state under its medical licensing statutes. Sarasota Cty. Public Hospital Bd. v. Shahawy, 408 So.2d 644, 645 (Fla. 2d DCA 1981); Green v. City of St. Petersburg, 154 Fla. 339,17 So.2d 517, 518 (1944); Mizell. Furthermore, the Florida Statutes have accorded hospital boards considerable discretion in making the determination as to what criteria will be required as a precondition for staff privileges. See Sha-hawy; Mizell. That discretion is limited only by the constitutional requirement “that the standards for privileges be reasonably related to furthering the goal of providing high quality patient care, that the power of the hospital not be exercised in an unreasonably arbitrary and capricious manner and that the decisions of the hospital be subject to judicial review.” Shahawy, 408 So.2d at 647.

Under Florida’s equal protection analysis, appellants have the burden of showing “that there is no conceivable factual predicate which would rationally support the classification under attack.” Florida High School Activities Ass’n. v. Thomas, 434 So.2d 306, 308 (Fla.1983). In the case at bar, appellants have not shown that the criteria adopted by the bylaw are not reasonably related to furthering the goal of providing high quality patient care. In addition, there is no compelling evidence in the record suggesting that the Bylaw Committee intended to arbitrarily exclude doctors of osteopathy from its medical staff. In fact, there is an appeal process provided by the bylaws themselves which is designed to insure that the decision whether to hire an applicant is not arbitrarily made. Therefore, the hospital’s refusal to allow non-eligible and non-certified medical board applicants positions on its staff was not an abuse of its discretion and was not done arbitrarily or unreasonably.

Finally, appellants contend that the bylaw enacted violates their right to contract guaranteed by Article I, Section 9, of the Florida Constitution. The right of doctors of osteopathy to contract with patients is only tangentially implicated in the instant case. The right of the hospital to contract with qualified physicians, however, is directly implicated. Appellants here have no constitutional right to practice their type of medicine in a particular hospital. Bryant v. City of Lakeland, 158 Fla. 151, 28 So.2d 106 (1946); Mizell. The hospital’s right to guarantee the quality of its staff so as to protect the financial viability of the hospital outweighs the right of a particular patient to have a particular doctor treat him in a particular hospital. Consequently, the above bylaw does not violate the right to contract which inheres in Article I, Section 9 of the Florida Constitution.

The final judgment and order denying appellant’s motion for rehearing is affirmed.

AFFIRMED.

COBB, C.J., and DIAMANTIS, G.N., Associate Judge, concur.

      . This statute has been subsequently changed as of October 1, 1982, and has been replaced by a more comprehensive statute. The newer statute provides:
      395.011(2) When a licensed facility requires, as a precondition to attaining staff membership or professional clinical privileges, the completion of, eligibility in, or graduation from any program or society established by or relating to the American Medical Association or the Liaison Committee or Graduate Medical Education, the licensed facility shall also make available such membership or privileges to physicians who have attained completion of, eligibility in, or graduation from any equivalent program established by or relating to the American Osteopathic Association.
      The lower court explicitly points out that its Final Judgment only applies to the 1979 statute and makes no findings with respect to the new licensure statute. Most notably, the new statute imposes an equivalency test to determine whether D.O. training can be used to exclude a particular applicant. The change implicitly approves the character of medical training as a valid criterion with which to judge an osteopath's qualifications. We similarly limit our holding to the prior statute.


author: ORFINGER, Judge.

text:
    Harvey Eugene CAMPBELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-215.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Kenneth J. Cotter, Cotter & Small, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Defendant appeals from a judgment of conviction following a guilty plea to a charge of trafficking in cannabis in violation of section 893.135(l)(a), Florida Statutes (1981), and from the imposition of the three-year minimum sentence required by that statute.

Defendant contends that the State was bound to honor the agreement on which the guilty plea was based that it would move the court to mitigate defendant’s sentence pursuant to section 893.135(3), in return for defendant’s substantial assistance in making at least two drug busts with a specified minimum dollar value. When the State refused to make such motion on the ground that defendant had not rendered substantial assistance, defendant moved to enforce the agreement, or alternatively, that he be allowed to withdraw his plea. After denying relief to defendant, the trial court adjudicated him guilty and imposed the sentence. We reverse.

It is clear from the record that the drug cases the State wanted defendant to help with had nothing to do with the criminal activity for which the defendant was charged. Defendant was not asked to, nor did the plea bargain encompass any agreement to provide substantial assistance in the identification, arrest or conviction of any of his “accomplices, accessories, co-conspirators, or principals” with regard to the crime for which he was charged. Instead, he was requested to become an informant with regard to crimes as yet undetected (and perhaps even uncommitted), and help the police make new cases.

However laudable and commendable that objective may be, the legislature has not given the State the right to make such a plea bargain, nor has it given the trial court the power to mitigate the three-year mandatory sentence based upon such bargain. The statutory language is clear. The court may mitigate the three-year minimum sentence only when the State represents that defendant has rendered substantial assistance in the apprehension of others involved in the very crime for which defendant is charged (his accomplices, accessories, co-conspirators, or principals). Any other interpretation of the clear language of the statute would be a judicial invasion of the prerogatives of the legislature to determine applicable sentences for given crimes.

The nature of the “substantial assistance” was not disclosed to the trial judge when the plea was accepted. The court did advise defendant, when accepting his plea, that if the State would represent to the court that defendant had rendered substantial assistance “in accordance with the statutory requirements” the minimum three-year sentence would not be imposed. Since the bargain between the State and defendant did not comport with the statute, there was no legal basis for it, and thus the plea bargain was a nullity. Defendant’s motion for leave to withdraw the plea should have been granted. See, Forbert v. State, 437 So.2d 1079 (Fla.1983); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).

The judgment of conviction and sentence are reversed and the cause is remanded with directions to vacate the plea and for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . Section 893.135(3), Florida Statutes, provides: The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.


author: SHARP, Judge.

text:
    Josh GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-525.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

The sole material issue in this case is whether the trial court erred in refusing to give defense counsel’s requested instruction on third degree murder. § 782.04(4), Fla.Stat. (1983). Green was charged with first degree murder, and the trial court gave the jury instructions on second degree murder, and on manslaughter. The jury convicted Green of second degree murder. We affirm.

Defense counsel argued that proof at trial established the underlying felony of discharging a firearm into an occupied dwelling or at an occupied vehicle. The allegations in the indictment and proof at trial established that the victim was killed by Green with a bullet fired from his rifle as she was standing near a truck. She was unaware she was being fired upon, and she died instantly. Green testified he fired either at a nearby bar or at the truck.

We do not think that in this case the third degree felony murder instruction should have been given because it is not a lesser included offense of premeditated first degree murder. See The Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions, Schedule of Lesser Included Offenses (1981 ed.). The underlying felony urged by defense counsel — firing at an occupied dwelling or into an occupied car — contains different statutory elements than simple first degree murder. Therefore, neither Florida Rule of Criminal Procedure 3.510, nor Florida Rule of Criminal Procedure 3.490 require the giving of the requested instruction. Third degree felony murder is not a degree crime of simple premeditated murder.

AFFIRMED.

ORFINGER, J., and BLOUNT, URIEL, Jr., Associate Judge, concur.

      .That crime is defined as:
      (4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
      (a) Trafficking offense prohibited by s. 893.135(1),
      (b) Arson,
      (c) Sexual battery,
      (d) Robbery,
      (e) Burglary,
      (f) Kidnapping,
      (g) Escape,
      (h) Aircraft piracy,
      (i) Unlawful throwing, placing, or discharging of a destructive device or bomb, or
      (j) Unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation or opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,
      ís murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

      . § 782.04(l)(a)(l), Fla.Stat. (1983).

      . § 782.04(2), Fla.Stat. (1983).

      . § 782.07, Fla.Stat. (1983).

      . § 790.19, Fla.Stat. (1983).

      . The indictment charging appellant with murder stated, in pertinent part:
      That JOSH GREEN did, on the 7th day of May, 1981, in Osceola County, Florida, in violation of Florida Statute 782.04(1), from a premeditated design to effect the death of a human being kill and murder KRISTI MEDIA STARLING, in said county, by shooting her with a rifle.

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

      . If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.
      Fla.R.Crim.P. 3.490.


text:
    Bruce Allen GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-928.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

This case presents the question of whether, when a defendant is charged with attempted burglary with the intent to commit theft, section 810.02(1), Florida Statutes (1983), and there is proof at trial of an unlawful entry into the residence, albeit minimal, it is proper for the trial court to give an instruction allowing the jury to find proof of intent to commit theft, based on the statutory presumption set forth in section 810.07, Florida Statutes (1983). That statute provides:

In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

Over timely objection by defense counsel, the trial judge instructed the jury:

[Pjroof of entering a structure stealthily and without consent of the owner or occupant may justify a finding that entering was with the intent to commit a crime if from all of the surrounding circumstances you are convinced beyond a reasonable doubt that the intent existed.

In State v. Waters, 436 So.2d 66 (Fla. 1983), the supreme court answered a similar question certified to it by the Fourth District Court of Appeal in the negative, holding that it was improper to rely on the statutory presumption of section 810.07 where the charge is attempted burglary, because the statutory presumption on its face does not apply to attempts. However, the court indicated that the statutory presumption may be used where there is proof of an entry:

In this case, however, section 810.07 is inapplicable on its face because here the charge was attempted burglary rather than burglary, and because here there was no proof of entering, but only of an attempt to break and enter. (Emphasis supplied).

Id. at 70.

Based on this language, we hold that the instruction in this case was proper. But because we think the issue is one of great public importance, Art. V, § 4, Fla. Const., Florida Rule of Appellate Procedure 9.030(a)(2)(v), we certify the following to the Florida Supreme Court for resolution:

IN A CRIMINAL CASE IN WHICH A DEFENDANT IS CHARGED WITH ATTEMPTED BURGLARY, AND THERE IS PROOF AT TRIAL OF DEFENDANT’S UNLAWFUL ENTRY INTO THE STRUCTURE OR RESIDENCE INVOLVED, IS IT PROPER FOR THE TRIAL COURT TO RELY UPON THE STATUTORY PRESUMPTION SET FORTH IN SECTION 810.07 IN INSTRUCTING THE JURY ON PROOF OF INTENT TO COMMIT AN OFFENSE?

AFFIRMED.

ORFINGER, J., and BLOUNT, URIEL, Jr., Associate Judge, concur.

      . At trial it was established that the defendant cut a door screen and thrust his hand through the opening in an effort to unlock the door.

        . Cf. Frederick v. State, 451 So.2d 1066 (Fla. 5th DCA 1984).


author: BLOUNT, URIEL, Jr., Associate Judge.

text:
    Charles C. BURROUGHS, Appellant, v. STATE of Florida, Appellee.
    No. 83-957.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Ed Leinster of Ed Leinster, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   BLOUNT, URIEL, Jr., Associate Judge.

Affirmed on the authority of New York v. Belton, 458 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

ORFINGER and SHARP, JJ., concur.


text:
    Rose Marie STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1014.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    A.A. McClanahan, Jr., Sanford, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   BLOUNT, URIEL, Jr., Associate Judge.

The appellant was before the court below charged by Information with burglary and grand theft. She was tried before a jury with two co-defendants Willie Preston and Robert Joseph. The jury returned a verdict of guilty to both charges and the trial court adjudicated appellant guilty of burglary and grand theft and sentenced her to a five-year term on each count with the sentences to be served consecutively. Before beginning closing arguments, the trial court limited each of the defendants to ten minutes for closing arguments and the State Attorney two additional minutes. Appellant’s attorney objected and stated that the closing would require more time and the Court responded that he would allow only ten minutes. Appellant’s attorney specifically requested fifteen minutes and as grounds indicated that the three co-defendants all testified with inconsistent statements. The trial court denied the request.

This appeal is taken on three grounds:

ISSUE I
THE TRIAL COURT ABUSED ITS DISCRETION IN SEVERELY LIMITING THE TIME ALLOWED FOR CLOSING ARGUMENTS WHERE THE CHARGES WERE SERIOUS AND THE ISSUES COMPLEX.
ISSUE II
THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT A NEW TRIAL ON THE BASIS OF HER TESTIMONY AND EVIDENCE PRESENTED AT HEARING AND EVI-DENTIARY HEARINGS ON APPELLANT’S AMENDED MOTION FOR NEW TRIAL REGARDING APPELLANT’S RECANTATION OF COERCED, FALSE TRIAL TESTIMONY DETRIMENTAL TO APPELLANT’S DEFENSE AT TRIAL.
ISSUE III
THE TRIAL COURT ERRED IN CONSIDERING THE APPELLANT’S REFUSAL TO ADMIT GUILT IN DETERMINING THE SENTENCE.

As we must reverse for a new trial because of the arbitrary and unreasonable action of the trial judge in limiting time for closing arguments thus depriving the appellant the right to a fair trial, there is no need to go further in this opinion on the other grounds for appeal. See May v. State, 89 Fla. 78, 103 So. 115 (1925) and Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984).

The judgments and sentences for burglary and grand theft are reversed and remanded for new trial.

REVERSED and REMANDED.

ORFINGER and SHARP, JJ., concur.


text:
    Dennis C. MAYFIELD, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1069, 83-1392.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Dennis F. Fountain of Freeman, Eaton & Fountain, Altamonte Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

State v. Preston, 387 So.2d 495 (Fla. 5th DCA 1980), aff'd, 444 So.2d 939 (Fla.1984).

ORFINGER and SHARP, JJ., and BLOUNT, URIEL, Jr., Associate Judge, concur.


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

text:
    Luther S. HUFF, Jr., Appellant, v. Wilmateen Virginia Maxwell HUFF, Appellee. Wilmateen Virginia Maxwell HUFF, Appellant, v. Luther S. HUFF, Jr., Appellee.
    Nos. 83-1195, 83-1231.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.

      John M. Cain, Orlando, for appellant in No. 83-1195, and for appellee in No. 83-1231.
    John W. Frost, II, of Frost, Purcell & Lilly, P.A., Bartow, for appellee in No. 83-1195, and for appellant in No. 83-1231.
   FRANK D. UPCHURCH, Jr., Judge.

Both parties appeal from an amended final judgment of dissolution of marriage. The final judgment provides in part as follows:

As lump sum alimony the Court awards to the Wife the exclusive use and occupancy of said marital home until the Wife remarries or ceases to occupy the marital home at which time the home shall be sold and the proceeds divided equally between the Husband and Wife. The Wife shall pay the mortgage payments on the marital home while she occupies it. The Wife shall be reimbursed from the Husband’s share of the proceeds from the sale of the marital home one-half of the mortgage payments she pays between the date of the Final Judgment and the closing of the sale. The Husband and Wife shall each pay one-half the taxes and insurance on the marital home. Upon either party’s death, if the marital home has not been sold, the interest of the deceased party shall pass to the surviving party, (emphasis added)

Lump sum alimony is essentially the payment of alimony in a definite sum and is in the nature of a final property settlement. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Since the court did not award the husband’s interest in the home to the wife, the use of the term “lump sum alimony” was incorrect and the exclusive possession of the home by the wife was simply an additional award of support. Under the facts of this case, we find no abuse of discretion in awarding the wife the use of the home as a facet of support. See Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978).

We also reject the wife’s contention that she should have been awarded the husband’s interest in the home as lump sum alimony but agree that the trial court should not have provided for a right of survivorship. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981); § 689.15, Fla.Stat. (1983). As to the other issues raised by the parties, we find no abuse of discretion. See Canakaris; Conner v. Conner, 439 So.2d 887 (Fla.1983).

We strike the reference to lump sum alimony and the right of survivorship from paragraph four of the amended final judgment. As modified, the judgment is affirmed.

. , AFFIRMED as modified.

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

      . Section 689.15, Florida Statutes (1983) provides that the tenants, upon dissolution of marriage, shall become tenants in common. The husband’s duty of support will terminate upon his death and with it the wife’s right to exclusive occupancy of the residence.


text:
    Henry Charles HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1197.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant. ’ J ^

    Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The question in this case is whether or not a single criminal transaction or episode constituted one or two separate and distinct armed robberies.

Defendant entered a grocery supermarket with a shotgun and marched the cashier from his cash register to the store office where the store supervisor was counting money. Defendant then ordered the cashier to return to his cash register and get the money from it. The defendant then directed the supervisor to put the money she was counting in the office into a paper bag. The cashier then returned to the office and handed the cash register till to the supervisor who then placed the money from the till into the paper bag which the defendant took.

On these facts the defendant was convicted of one count of armed robbery as to the cashier and a second count of armed robbery as to the supervisor. The defendant argues that the facts support but one count of armed robbery because all the money was owned by the one supermarket, the supervisor was the overall custodian of the funds and was the one that actually put all of the money into the paper bag and that the taking of the money from both the office and the cash register till were all part of a “single transaction” and one criminal intent in the mind of the defendant.

We hold that the crux of the offense of robbery is a taking and that the taking of the money from the custody of the supervisor in the office and the taking of the money from the cash register till that was in the actual custody of the cashier, were sufficiently distinct and different factual events as to support two separate convictions. See Brown v. State, 430 So.2d 446 (Fla.1983). See also Morales v. State, 451 So.2d 941 (Fla. 5th DCA 1984).

AFFIRMED.

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

      . For a general consideration of the divisibility of one criminal transaction or episode into two or more separate and distinct factual events each constituting a separate and distinctly different criminal offense, see the dissent in Baker v. State, 425 So.2d 36 at 44 (Fla. 5th DCA 1982),
        quashed, in part, State v. Baker, Baker v. State, 456 So.2d 419 (Fla. 5th DCA 1984).


text:
    BUILDERS SHORING AND SCAFFOLDING, etc., et al., Appellants, v. Carroll Donald KING, et al., Appellees.
    Nos. 83-1285, 83-1710.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Dennis J. Wall of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellants.
    Martin B. Unger and Edmund T. Baxa, Jr., of Swann & Haddock, P.A., Orlando, for appellee F.W. Woolworth & Co.
    No appearance for appellees King.
   ORFINGER, Judge.

The trial court correctly dismissed the third party complaint, so the amended final judgment in favor of the third party defendant is affirmed.

We do not agree, however, that the third party complaint was so frivolous as to warrant the imposition of attorney’s fees against the third party plaintiffs under the provisions of section 57.105, Florida Statutes (1983). Although the position asserted by third party plaintiffs was erroneous on the merits, the claim was not entirely devoid of even arguable substance. See, Whitten v. Progressive Casualty Insurance Company, 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). At least some of the counts asserted by the third party plaintiffs were arguable, and we should not impose a penalty on a party who attempts to raise novel questions of law or who, in good faith, attempts to move the law in a slightly different direction. See, Russell v. State, 417 So.2d 1119 (Fla. 5th DCA 1982). The order awarding attorney’s fees is therefore reversed.

AFFIRMED IN PART; REVERSED IN PART.

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


author: COBB, Chief Judge. SHARP, Judge,

text:
    Carol Sue WALLACE, Appellant, v. Delbert Ray WALLACE, Appellee.
    No. 83-1409.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    Salvatore R. Scarito, Orlando, for appellant.
    Nancy Y. Smith, of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appellee.
   COBB, Chief Judge.

The wife, Carol Sue Wallace, appeals from a final judgment of dissolution entered in September, 1983, which awarded her one-half interest in the parties’ marital domicile to her husband, Delbert Ray Wallace, on the basis that he had established a special equity therein. The Wallaces married in 1976 and purchased a home in Kissimmee, Florida, in 1978 for $55,000.00 with a $5,000.00 down payment derived solely from separate assets of the husband. See Ball v. Ball, 335 So.2d 5 (Fla.1976). Title was taken in joint names, but the mortgage note financing the balance apparently was solely in the name of the husband.

During the marriage each party worked and contributed, in varying degrees, to family expenses. The marital home, consisting of some two-and-a-half acres, was substantially improved during the marriage with the addition of a barn and fencing. At the time of dissolution it was valued at $111,000.00 and the existing mortgage was approximately $45,500.00.

At trial the husband testified he intended no gift in placing the home in joint names. On appeal, the wife contends such testimony, standing alone, is not enough to rebut contrary evidence supporting a gift at time of transfer. The Florida Supreme Court previously has told us otherwise. Marsh v. Marsh, 419 So.2d 629 (Fla.1982). But the wife also contends that even if she is not entitled to one-half of the marital home under Ball, she is entitled to something under Landay v. Landay, 429 So.2d 1197 (Fla.1983), and McClung v. McClung, 427 So.2d 350 (Fla. 5th DCA 1983).

In McClung the husband supplied the down payment on several parcels of property from his separate funds and paid for the balance from his earnings during marriage. In determining the method of assessment of the husband’s special equity, we held:

[T]he spouse owning the separate property is awarded a special equitable property interest in the property in the form of a percentage of the title equal to the ratio which the original contribution of separate property bore to the original total acquisition cost; again the remaining equity or value of the property is considered marital property and subject to equitable distribution.

427 So.2d at 352.

In Landay the Florida Supreme Court adopted the same approach that we had utilized in McClung. There it was held that the correct formula to be used when one spouse had furnished some but not all of the consideration for entireties property could be stated:

[I]n addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.

429 So.2d at 1200.

The wife argues that, using the Landay formula, the husband would have been entitled to a total interest in the home property of his 50 percent plus one-half of 9.09 percent (the proportion of his $5,000 down payment to the total purchase price of $55,-000), or a total of 54.545 percent, leaving the wife an interest of 45.455 percent.

The husband argues that the evidence shows that he substantially improved the property through his own extraordinary personal industry, relying on Hipps v. Hipps, 418 So.2d 1234 (Fla. 5th DCA 1982). Even if the trial court accepted this, however, it could not justify the elimination of all interest in the wife. In Hipps the extraordinary contributions of the husband were greater than in this case, and we left the parties with an equal interest in the disputed property, which originally had been entirely in the wife’s name.

In the final judgment in the instant case, the trial court ruled that the primary physical residence of the parties’ son, David, would be with the husband. It was further ordered that the husband was to bear the sole financial responsibility for the child’s support and maintenance. It is apparent that the trial court contemplated that the child would be residing in the marital domicile with the husband, to whom title to the property was awarded. This purpose could have been accomplished by the award to the husband of the exclusive right to possession of the marital domicile as child support during the minority of the child. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

Apparently the trial court found that the extraordinary efforts of the husband in construction of the barn gave rise to a special equity in the husband. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hipps; Floyd v. Floyd, 383 So.2d 773 (Fla. 5th DCA), review denied, 392 So.2d 1374 (Fla.1980). Even if this is true, and we accept it as a valid factual determination made by the trial court, the total divestiture of the wife’s fee interest in the home is still unwarranted. The husband’s testimony was that the barn enhanced the value of the home property by $20,000, the total value being $111,000. This equity, over and above that created by the down payment, would be eighteen percent, one-half of which would be nine percent. This, added to the 54.545 percent above, aggregates 63.545 percent for the husband — not 100 percent. The wife still should retain at least a 36.455 percent interest in the fee.

We therefore reverse the award of the wife’s entire legal interest in the home property, and remand for entry of a judgment granting the husband a special equity of 13.545 percent in his wife’s one-half interest in the property. In view of this determination, we also vacate the provision in the final judgment (paragraph 3 thereof) relating to child support for reconsideration by the trial court in light of our reversal of the award of the entire fee interest in the home property to the husband.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J„ concurs.

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

SHARP, Judge,

concurring in part; dissenting in part.

I would simply apply the Landay v. Landay, 429 So.2d 1197 (Fla.1983), formula in this case. After marriage, the earnings or labors of the marital partners should not be used to create a special equity in jointly-owned assets: in this case, building a barn. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); McClung v. McClung, 427 So.2d 350 (Fla. 5th DCA 1983). While the barn was being built, the wife ran the household and looked after the husband’s children (only one of which was hers), furnished lumber for the barn’s construction, and contributed her earnings and resources to their joint efforts. Recognizing special equities in this context will lead to trials about who washed the socks or carried out the garbage more often than was equitable. I think it is a mistake for courts to embark on such a quest.


text:
    Leslie K. CROWE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1637.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Sentence vacated and ease remanded for resentencing. See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

COBB, C.J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.


text:
    Daniel Ray SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1919, 83-1915 to 83-1918.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find no error in the trial court’s revocation of defendant’s probation and in the trial court’s sentencing of defendant on the convictions for which defendant had received probation. This is without prejudice to defendant filing a motion under Fla.R. Crim.P. 3.850 on grounds of ineffective assistance of counsel. See Williams v. State, 438 So.2d 781, 786 (Fla.1983).

AFFIRMED.

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


text:
    Jessie Lee OWENS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-2009, 83-2010.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find error only in the trial court’s retention of jurisdiction over one-half of appellant’s sentences. In accordance with this court’s opinion in Hayes v. State, 448 So.2d 84 (Fla. 2d DCA 1984), on motion to modify mandate, 452 So.2d 656 (1984), we remand these cases to the trial court for correction of the sentences to reflect the trial court’s retention of jurisdiction over only one-third of the sentences.

Appellant’s judgments and sentences are otherwise AFFIRMED.

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


text:
    Reginald BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 84-49.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find that appellant has failed to demonstrate reversible error; therefore, the trial court’s order denying appellant’s motion to vacate judgment and sentence is affirmed. However, we must remand to the trial court because of clerical errors in the court’s order placing appellant on probation and in the order modifying probation.

Appellant pled nolo contendere to the charge of aggravated assault in circuit case number 81-863. The written order placing appellant on probation, however, states his offense as aggravated battery. The same is true of the written order modifying appellant’s probation. The orders of probation must be corrected to show that appellant is on probation for the offense of aggravated assault, not aggravated battery. Accordingly, we remand this cause to the trial court for correction of these errors.

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


text:
    Ronald A. SPARKS, Appellant, v. STATE of Florida, Appellee.
    No. 84-56.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant’s probation was revoked on the basis of numerous alleged violations. Appellant maintains, and the state concedes, that no testimony was presented to support the allegations that appellant violated condition (11) of his probation by failing to contribute toward the cost of supervision, condition (14) by failing to pay court costs, and condition (15) by failing to make restitution. Consequently, we strike from the order revoking probation the findings that appellant violated the aforementioned conditions of probation.

Appellant’s other argument is without merit.

There was competent evidence to support the findings of the trial court that appellant violated probation by changing his residence without the consent or knowledge of his probation officer, failing to report to his probation officer in July and August, 1980, violating the law, and withdrawing from an alcoholic therapy program without the approval of his probation officer. The record makes clear that the lower court was prepared to revoke appellant’s probation for these violations alone. See Sillett v. State, 393 So.2d 53 (Fla. 2d DCA 1981). Therefore, as amended, we affirm the order revoking appellant’s probation.

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


author: CAMPBELL, Judge.

text:
    Neal Benjamin IVEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-221.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Neal Benjamin Ivey, appeals the trial court’s order denying his motion for mistrial and the court’s retention of jurisdiction over one-half of his sentence. Of the three points raised on appeal, only the final point concerning the trial court’s retention of jurisdiction has merit.

Appellant was charged by information with robbery with a weapon in violation of section 812.13(2)(b), Florida Statutes (1983), and two counts of aggravated battery in violation of section 784.021(1)(b), Florida Statutes (1983). Appellant was tried by jury and found guilty of robbery and one count of aggravated assault. He was sentenced to a term of thirty years in prison on the robbery charge and ten years on the aggravated assault charge. The sentences were to run concurrently, and the court retained jurisdiction over one-half of appellant’s sentence.

Section 947.16(3), Florida Statutes (1983) was amended to limit the amount of jurisdiction that a trial judge could retain from one-half to one-third of a sentence. In this case, appellant was charged on April 15, 1983. The amendment to section 947.16 became effective on June 15, 1983. In Hayes v. State, 448 So.2d 84 (Fla. 2d DCA 1984), this court held that applying the amended statute to a defendant who committed the crime prior to the effective date of the statute, but who was sentenced after the effective date, would not be disadvantageous to the defendant and, thus, would not be an ex post facto application. See State v. Williams, 397 So.2d 663 (Fla.1981); Cunningham v. State, 423 So.2d 580 (Fla. 2d DCA 1982).

Therefore, since appellant was sentenced after the effective date of the statute, the court under Hayes was limited to retaining jurisdiction only over one-third of his sentence.

Accordingly, we affirm appellant’s conviction, but remand to the trial court for correction of sentence. We recognize that at the time of sentencing, the trial judge did not have the benefit of this court’s holding in Hayes.

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


text:
    Willie WILLIAMS, Appellant, v. FLORIDA MEMORIAL COLLEGE, Appellee.
    No. 83-1729.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Stephen Cahen and Keith Chasin, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Joseph H. Serota, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal and cross appeal from a final judgment in an action for breach of contract and back salary brought by an untenured assistant professor of music against Florida Memorial College. We have carefully examined the briefs of the parties together with the record on appeal and can discern no reversible error save in one respect. We accordingly affirm in part and reverse in part.

First, the trial court properly construed the faculty handbook to mean that the professor herein was not entitled, as urged, to a one-year notice of non-appointment before the college could terminate the professor by not renewing his contract. Notice of an intention to reappoint was required by the faculty handbook, not a notice of non-appointment. Second, the professor was clearly employed to teach the overload courses in question and was entitled to the compensation awarded him by the trial court. Third, the trial court committed reversible error in concluding that attorney’s fees were not legally recoverable in this action under Section 448.08, Florida Statutes (1981), and in denying a request by the professor for attorney’s fees on this basis. The aforesaid statute authorizes, but does not require, an award of attorney’s fees for the prevailing party in an action for unpaid wages. We construe count III of the complaint herein to be an action for unpaid wages, and, accordingly, the trial court had the discretionary authority to award the professor herein attorney’s fees, as he was the prevailing party on this count. Upon remand, the trial court is directed to exercise its discretion and rule on the merits as to the professor’s request for attorney’s fees relating solely to legal services performed in prevailing on count III of the complaint. See Quinones v. State, 448 So.2d 608, 609 (Fla. 3d DCA 1984); Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735, 737 (Fla. 3d DCA 1982); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278, 279 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971); Childs v. Catlin, 134 Ga.App. 778, 216 S.E.2d 360, 363 (1975); Sullivan v. Chicago & Northwestern Transportation Co., 326 N.W.2d 320, 328 (Iowa 1982).

Affirmed in part, reversed in part and remanded.


author: DANIEL S. PEARSON, Judge.

text:
    Willie Edward PENNICK, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1740.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Bennett H. Brummer, Public Defender and Gitlitz, Keegan & Dittmar and Stuart H. Gitlitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant’s sole point on appeal is that the trial court erred when it denied his motion for judgment of acquittal, such motion specifically contending that the State’s proof of venue was insufficient as a matter of law. We agree with the defendant and reverse his conviction.

The well-settled principles of law applicable to this case are not in dispute. The allegation in the charging document that the offense occurred within a named county is a material allegation of the charge which must be proved by the State. Smith v. State, 29 Fla. 408, 10 So. 894 (1892); Cook v. State, 20 Fla. 802 (1884); Robinson v. State, 20 Fla. 804 (1884); Bryan v. State, 19 Fla. 864 (1883). See State v. Black, 385 So.2d 1372 (Fla.1980). However, unlike essential elements of the crime, venue need not be proved beyond a reasonable doubt, Collingsworth v. State, 93 Fla. 1110, 113 So. 561 (1927); Lowman v. State, 80 Fla. 18, 85 So. 166 (1920); Hopkins v. State, 52 Fla. 39, 42 So. 52 (1906); Smith v. State, 10 So. 894; Warrace v. State, 27 Fla. 362, 8 So. 748 (1891); Andrews v. State, 21 Fla. 598 (1885); Ball v. State, 204 So.2d 523 (Fla. 3d DCA 1967); Chaudoin v. State, 118 So.2d 569 (Fla.2d DCA 1960), but instead is sufficiently proved “if the jury can reasonably infer from the evidence that the crime was committed in the alleged jurisdiction.” Ball v. State, 204 So.2d at 524. See Andrews v. State, 21 Fla. 598. Thus, proof of venue is sufficient where the evidence includes “references to various localities and landmarks at or near the scene of the [crime], known by or probably familiar to the jury, from which, under the liberal rule laid down by the courts, they may have reasonably concluded that the offense was committed in [the alleged] county,” Andrews v. State, 21 Fla. at 611. See Kennedy v. State, 140 Fla. 124, 191 So. 193 (1939) (venue sufficiently established by testimony that offense at 300 East Fisher Street apparently near the federal building in Pensacola); Timmons v. State, 97 Fla. 23, 119 So. 393 (1929) (same; testimony that offense occurred “on the road between Sharpe’s Ferry and Ocala about one mile west of the bridge”); Collingsworth v. State, 113 So. 561 (same; testimony that offense occurred at Laurel Hill); Lowman v. State, 85 So. 166 (same; testimony that offense occurred in Port Tampa City with other references to localities and landmarks, notwithstanding the lack of affirmative evidence that Port Tampa City in Hillsborough County); Leslie v. State, 35 Fla. 184, 17 So. 559 (1895) (same; testimony that offense occurred at Lynn’s Hotel in St. Augustine); Duncan v. State, 29 Fla. 439, 10 So. 815 (1892) (same; testimony that offense occurred two and one-half miles west of Lake City). However, where it cannot be fairly said that the locality referred to in the testimony as the place where the offense occurred is known by or probably familiar to the jury, see Smith v. State, 42 Fla. 236, 27 So. 868 (1900) (witnesses’ testimony that blow which eventually caused victim’s death was struck in an unnamed turpentine camp “very near ‘Clarissa’s house’ ... in sight of Alice Jones’ house, and not very far from the home of the deceased,” insufficient to prove venue), or where the locality referred to, even if known by or probably familiar to the jury, does not relate to the place of the offense, see Powell v. State, 132 Fla. 659, 181 So. 901 (1938) (testimony that defendant and owner of stolen bull both lived in Holmes County insufficient to prove that larceny of bull occurred in such county); Smith v. State, 27 So. 868 (testimony that murder victim was brought from unidentified turpentine camp where mortal blow was struck in morning to Tallahassee where she died that night insufficient to prove that offense occurred in Leon County in the absence of proof of distance and direction of camp from Tallahassee); Evans v. State, 17 Fla. 192 (1879) (testimony that “defendant has lived within two years previous to the last term of this court at a wharf known as Commendencia Street Wharf” insufficient proof that offense of keeping house of prostitution occurred in Escambia County, even if the locality of the wharf known by or probably familiar to the jury), venue is not sufficiently proved. In sum, then, proof of venue “cannot be left to guesswork on the part of the jury.” Powell v. State, 181 So. at 901.

Turning now to the present case, the State contends that the evidence which sufficiently proves that the offense was committed in Dade County, as alleged, is that first, the offense was said to have occurred at a location variously described by witnesses as “the County Line Road,” “near the County Line dump,” and “at 215th Street and 47th Avenue”; second, other testimony revealed that the victim of the shooting was taken to and treated at a hospital located in Dade County; and third, it was shown that personnel from the Dade County Sheriff's Office went to the hospital to investigate the incident. We must reject the State’s contention.

Notwithstanding that the locality described as “the County Line Road” or “215th Street and 47th Avenue” and the landmark called “the County Line dump” may have been known by or were probably familiar to the jury, it is apparent that, under the unique circumstances of this case, the jury could not reasonably conclude that the offense occurred in Dade County when the descriptions themselves lead to the equally compelling conclusion that the offense occurred in Broward County. Similarly, evidence that the victim of the shooting was treated at a hospital located in Dade County hardly serves to prove the venue of the crime. As the court observed in Smith v. State, 27 So. 868, the fact that the victim was removed to a hospital in Tallahassee after being assaulted, “[e]ven under the very liberal rules regulating proof of venue prevailing in this State, ... is wholly insufficient to establish the allegation that the mortal wound was inflicted in Leon County.”

Finally, it hardly need be said that the fact that law enforcement personnel from Dade County investigated the incident at a hospital in Dade County to which the victim had been taken proves nothing about the locus of the crime. The State might as well suggest that because the information alleges that the crime occurred in Dade County, because the case was in fact prosecuted by the State Attorney’s Office of the Eleventh Judicial Circuit, or because the case was tried in Dade County before a judge of that same circuit, a jury could reasonably conclude therefrom that the crime occurred in Dade County. Were it that venue could be so established, the need to prove venue would be no more.

Reversed with directions to discharge the defendant.

      . The information charged the defendant with aggravated battery and possession of a firearm during the commission of a felony. The jury found the defendant guilty of the lesser-included offense of discharging a firearm in public.

      . The State concedes that 215th Street is the same as the County Line Road and that County Line Road lies on the dividing line between Dade and Broward Counties.


text:
    L.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1886.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from an adjudication of delinquency based on loitering and prowling. § 856.021, Fla.Stat. (1981). Our review of the record reveals that the state failed to present “specific and articulable facts which would reasonably warrant a finding that the public peace and order were threatened or that safety of persons or property was jeopardized by the actions of the juvenile.” B.A.A. v. State, 356 So.2d 304, 306 (Fla.1978). Finding, therefore, that the evidence was insufficient to support a conviction for loitering and prowling, B.A.A.; V.S. v. State, 446 So.2d 232 (Fla. 3d DCA 1984); In re O.W., 423 So.2d 1029 (Fla. 4th DCA 1982), we reverse the adjudication of delinquency and remand with directions to discharge L.S.

Reversed and remanded.


text:
    The STATE of Florida, Petitioner, v. The Honorable Arthur I. SNYDER, Judge of the 11th Judicial Circuit in and for Dade County, Respondent.
    No. 84-811.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Jim Smith, Atty. Gen., and William P. Thomas and G. Bart Billbrough, Asst. At-tys. Gen., for petitioner.
    Jeffrey P. Raffle, Miami, for respondent.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

This is a petition for a writ of prohibition filed by the state to prohibit the trial court from holding an evidentiary hearing on the “[defendant's [sjecond [mjotion for [njew [tjrial” filed below. This motion was filed in the trial court following our reversal of a previous trial court order granting the defendant’s first motion for new trial. See State v. Prieto, 439 So.2d 288 (Fla.3d DCA 1983). We conclude that the trial court has no jurisdiction to entertain the defendant’s second motion for new trial and, accordingly, grant the petition for a writ of prohibition.

First, the second motion for new trial was plainly untimely under Fla.R.Crim.P. 3.590(a) because it was, without dispute, filed long after ten days had expired from the filing of the jury verdict in this cause, as required by said rule. Nor can the motion be treated as a belated amendment to the defendant’s first motion for new trial under Fla.R.Crim.P. 3.590(a) because the motion was filed long after the trial court had determined the first motion for new trial by granting it, thereby rendering the motion untimely as an amendment under the said rule. Inasmuch as the subject motion is untimely under Fla.R.Crim.P. 3.590(a), the trial court has no jurisdiction to entertain it. See Long v. State, 96 So.2d 897, 898 (Fla.1957); Farrior v. State, 76 So.2d 148, 150 (Fla.1954); State v. Robinson, 417 So.2d 760, 762 (Fla. 1st DCA 1982); Tafero v. State, 406 So.2d 89, 91 (Fla.3d DCA 1981); State v. Farmer, 384 So.2d 311, 313 (Fla. 5th DCA 1980); State v. Pinto, 273 So.2d 408, 411 (Fla.3d DCA), cert. dismissed, 283 So.2d 367 (Fla.1973).

Second, we would ordinarily hold that the trial court had jurisdiction to entertain the subject motion as a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850, see Smith v. State, 400 So.2d 956 (Fla.1981), or as a petition for a writ of error coram nobis, see Hallman v. State, 371 So.2d 482 (Fla.1979); Tafero v. State, supra, inasmuch as the defendant has been adjudicated guilty and sentenced in this case. We cannot do so, however, because a belated appeal from the final judgment and sentence under Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) has been taken by the defendant to this court, and we have granted the defendant permission to prosecute this belated appeal. Prieto v. Wainwright, No. 84-1306 (Fla.3d DCA filed June 14, 1984). This pending appeal necessarily deprives the trial court of jurisdiction to entertain, at this time, the subject motion as a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 or as a petition for a writ of error coram nobis. State v. Meneses, 392 So.2d 905 (Fla.1981).

Prohibition granted.


text:
    ARISTEK COMMUNITIES, INC., a Florida corporation, doing business as Lakewood Village and Aristek Properties, Ltd., a foreign corporation doing business as Lakewood Village, Appellants/Cross Appellees, v. Lee W. FULLER, et al., Appellees/Cross Appellants.
    No. 83-1399.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Lawrence A. Barkett of Gould, Cooksey, Fennell, Appleby, Barkett & O’Neil, Vero Beach, for appellants/cross appellees.
    Clifford M. Miller of Miller & Miller, Vero Beach, for appellees/cross appellants.
    Jack M. Skelding, Jr., Ronald A. Labasky and Kathryn G.W. Cowdery of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Manufactured Blousing.
    Jim Smith, Atty. Gen., and Joanna R. Martin, Sp. Asst. Atty. Gen., Tallahassee, for State of Florida.
    John T. Allen, Jr., St. Petersburg, for Federation of Mobile Home Owners of Florida.
   WALDEN, Judge.

The tenants at a mobile home park sued the park owners saying the rent increases from 1979 to 1983 were unconscionable. The tenants won. Owners appeal. We reverse and remand for further proceedings.

Contrary to the provisions of Section 83.-754, Florida Statutes (1983), the trial court did not determine the issue of unconsciona-bility. Instead, and erroneously, the issue was submitted to a jury. It returned a special verdict as follows:

Are the rent increases on lots in Lakewood Village made from 1979 to date by the defendants unconscionable as the rent was increased beyond the fair market rental value of each lot? [emphasis supplied]
YES _JX_ NO_.

Thereafter, the trial court conducted a hearing and determined the dollar value of a reasonable rent, the amount of rebates, and then awarded the tenants reasonable attorney fees.

We hold that the submission of the case to the jury, as above outlined, constituted harmful error which mandates reversal and remand.

We are aware that in some cases the wrongful submission of a case to a jury may constitute harmless error. See Gaulden v. Arkwright-Boston Manufacturers Mutual Ins. Co., 358 So.2d 267 (Fla. 3d DCA 1978).

The test for harmful error is whether but for such error a different result would have been reached. Anthony v. Douglas, 201 So.2d 917 (Fla. 4th DCA 1967).

The basis for our determination that the error was harmful starts with the wording of the verdict. In order for the jury to determine that the increases were unconscionable, it would have to find and base its decision solely on a finding that “the rent was increased beyond the fair market rental value of each lot.”

First, the statute does not prescribe the above criteria. In our opinion, the above criteria would be a powerful force in making a determination of unconscionability. However, there are other bases that may support a finding of unconscionability. See Kohl v. Bay Colony Club Condominium, 398 So.2d 865 (Fla. 4th DCA 1981); Bennett v. Behring Corp., 466 F.Supp. 689 (S.D.Fla.1979).

Second, most compellingly, there was no evidence adduced that we could find that would support the fact that the rent was increased beyond the fair market rental value of each lot. Indeed, the evidence was to the contrary.

In light of the reversal on the merits, we vacate the award of attorney’s fees without prejudice for re-determination based on the outcome of the case in chief.

The tenants’ cross appeal is without merit.

Reversed and remanded for further proceedings consistent herewith.

LETTS and HERSEY, JJ., concur.

      . 83.754 Unconscionable lot rental agreements.
      (1) If the court as a matter of law finds a mobile home lot rental agreement, or any provision of the rental agreement, to have been unconscionable at the time it was made, the court may:
      (a) Refuse to enforce the rental agreement.
      (b) Enforce the remainder of the rental agreement without the unconscionable provision.
      (c) So limit the application of any unconscionable provision as to avoid any unconscionable result. (Emphasis added)


text:
    Shirley HAUGABOOK, Appellant, v. STATE of Florida, Appellee.
    No. 83-2204.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed. The State failed to establish that appellant wilfully failed to seek her probation officer’s consent before leaving her approved residence, see Kotowski v. State, 344 So.2d 602 (Fla. 3d DCA 1977) or that her financial condition was such that payment could be made, Winfield v. State, 406 So.2d 50 (Fla. 1st DCA 1980).

HURLEY and DELL, JJ., concur.

LETTS, J., dissents without opinion.