author: RYDER, Chief Judge. CAMPBELL, Judge,

text:
    SAND KEY ASSOCIATES, LIMITED, Appellant, v. The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA, Appellee.
    No. 84-960.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1984.

      Richard J. Salem, Tampa, and William J. Kimpton of Case, Kimpton & Burke, P.A., Clearwater, for appellant.
    John W. Williams, Asst. Gen. Counsel, Dept, of Natural Resources, Tallahassee, for appellee.
   RYDER, Chief Judge.

We are concerned here with determining the owner of accreted land and the constitutionality of section 161.051, Florida Statutes (1981). In 1974, the state of Florida constructed a jetty on oceanfront property on Sand Key in Pinellas County, Florida. Sand Key Associates, Limited (Sand Key) also owns oceanfront property approximately one-half mile south of the jetty. After the construction of the jetty, there was a gradual build-up of land because of accretion on Sand Key’s property. The accreted land now exceeds five acres. The parties-agree that the accretion is due to the erection of the jetty and that Sand Key neither participated in nor contributed to the jetty project. The jetty was not constructed on Sand Key’s property.

Both parties claim ownership of the accreted land. The state bases its claim on section 161.051, Florida Statutes (1981), which provides as follows:

Coastal construction by persons, firms, corporations or local authorities.— Where any person, firm, corporation, county, municipality, township, special district, or any public agency shall construct and install projects when permits have been properly issued, such works and improvements shall be the property of said person, firm, corporation, county, municipality, township, special district, or any public agency where located, and shall thereafter be maintained by and at the expense of said person, firm, corporation, county, municipality, township, special district, or other public agency. No grant under this section shall affect title of the state to any lands below the mean high-water mark, and any additions or accretions to the upland caused by erection of such works or improvement shall remain the property of the state if not previously conveyed. The state shall in no way be liable for any damages as a result of erections of such works and improvements, or for any damages arising out of construction, reconstruction, maintenance, or repair thereof, or otherwise arising on account of such works or improvements.

Sand Key bases its claim on the common law rule as applied in Board of Trustees of the Internal Improvement Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209 (Fla.2d DCA 1973), that the upland riparian or littoral owner has a vested right to all accretion, whether naturally or artificially caused.

The trial court entered a partial summary judgment for the state, quieted title to the accreted land in the state, enjoined Sand Key from possessing the disputed property, and declared section 161.051 to be constitutional. The trial court ruled that pursuant to section 161.051 the state holds title to all accretion to the upland owned by any person when the accretion results from works or projects described in the statute. We reverse.

At common law littoral or riparian rights included the right of ingress and egress from the water to the land and the right in the land growing out of accretion or reliction. Such property rights are vested and cannot be taken away without just compensation. Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 78 So. 491 (1917).

This court in Medeira Beach Nominee, Inc. applied the common law rule and held that a strip of accreted land became the property of the upland littoral owner even where the accretion was the result of a lawful exercise of police power by a municipality to prevent beach erosion. We expressly did not consider section 161.051 in that case because the erosion project at issue began in 1957 while the statute was not enacted until 1965.

Section 161.051 states that any accretions to the upland caused by a work or improvement pursuant to that section shall remain the property of the state. It is unclear whether the legislature intended for section 161.051 to apply only to the upland owner of the improved property or also to the upland littoral owners whose property becomes accreted because of the improvement.

To the extent that section 161.051 applies to other upland littoral owners who neither participated in nor contributed to the improvement, the statute is in derogation of the common law and must be strictly construed. The presumption is that no change in the common law is intended unless the statute explicitly so states. Inference and implication cannot be substituted for clear expression. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

Section 161.051 does not explicitly state that it applies to all upland littoral owners. Therefore, construing the statute strictly, we hold that it applies only to the upland owner of the improved property. Section 161.051 does not affect Sand Key’s vested right to accretion on its property.

We approve the trial court’s ruling that section 161.051 is constitutional but reverse the remainder of the order. The lower court’s order effectively divested Sand Key of its littoral rights without compensation. We hold that the disputed five acres of accreted property, all future accretions on the property and all property rights incident thereof belong to Sand Key. The injunction prohibiting Sand Key from possessing its property is dissolved.

Recognizing that the intent of section 161.051 is unclear, we certify the following question to the Florida Supreme Court as one of great public importance:

PURSUANT TO SECTION 161,051, FLORIDA STATUTES (1981), IS THE STATE ENTITLED TO ACCRETED LAND OF ONLY THE UPLAND OWNER OF THE IMPROVED PROPERTY OR TO THE ACCRETED LAND OF ALL UPLAND LITTORAL OWNERS, WHETHER OR NOT THEY PARTICIPATED IN OR CONTRIBUTED TO THE IMPROVEMENT?
REVERSED.

CAMPBELL, Judge,

concurring with opinion in result only.

While I concur with the result reached by the majority, I interpret section 161.051 somewhat differently. The statute must be considered in its entirety to apprehend what I perceive to have been the intent of the legislature. The first sentence of section 161.051 operates to vest title to any works or improvements provided for therein in the entity which was permitted to construct such works or improvements. I conclude that the second sentence was enacted only to ensure that the state retains ownership of lands below the mean high-water mark and, where the state owns upland of the mean high-water mark, any additions or accretions to the state-owned upland.

In other words, the grant of title to the works or improvements to the entity constructing that work or improvement does not carry with it any additions or accretions. Therefore, where the state owned the upland and the land below the mean high-water mark, the title to the upland, the land below the mean high-water mark, and any additions or accretions shall, in the words of the statute, “remain the property of the state if not previously conveyed.” The grant of title to the constructing entity carries no more than title to the improvement itself. Apparently, this grant is provided so that there will be no dispute over the requirement of the statute that the constructing entity shall, at its expense, maintain the works or improvements. Where the upland owner is not the state, nor the entity constructing the work or improvement, the additions or accretions become the property of the upland owner. Therefore, what may have been state owned lands below the mean high-water mark as a result of the additions or accretions, become the property of the upland owner. The state would continue to own the land that is below the mean high-water mark after the additions or accretions. The result of the additions or accretions is to establish a new mean high-water mark.

LEHAN, J., concurs.

CAMPBELL, J., concurring with opinion in result only.

      . While the rights incident to ownership of land abutting a sea, lake, or pond are commonly referred to as riparian rights, they are technically littoral rights. Riparian rights are those incident to ownership of land contiguous to and abutting flowing, navigable waters such as streams or rivers. Gillilan v. Knighton, 420 So.2d 924 (Fla.2d DCA 1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AFSCME LOCAL 3032, Appellant, v. Edward S. DELANEY and City of Hialeah, Appellees.
    No. AV-398.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Irving Weinsoff, Miami, for appellant.
    No appearance for appellees.
   PER CURIAM.

This is an appeal from an order of the Public Employees Relations Commission (PERC), which found that a union time pool, contained in a collective bargaining agreement, and applicable to all bargaining unit members, was violative of Sections 447.501(l)(a) and 447.301(1), Florida Statutes. We adopt the order of PERC, the pertinent parts of which state as follows:

“On January 27, 1983, Edwin S. Delaney filed an unfair labor practice charge which alleged that the City of Hialeah had violated Section 447.501(l)(a), Florida Statutes (1981), by implementing a pool time provision contained in the collective bargaining agreement entered into by the City and the American Federation of State, County, and Municipal Employees, Local 3032. The provision required all employees in the bargaining unit represented by Local 3032 to contribute a certain number of sick leave or compensatory leave hours to a union time pool to be utilized for union business as determined by the President of Local 3032.

“After a series of prehearing orders and telephone conference calls, the hearing officer determined that there were no disputed issues of material fact. Consequently, no evidentiary hearing was conducted. On July 14,1983, the hearing officer issued his recommended order in which he concluded that the maintenance of the union time pool provision violated Section 447.501(l)(a).

⅝ ⅝ ⅜ ⅝ ⅜ ⅜;

In concluding that the City committed an unfair labor practice, the hearing officer relied upon Sections 447.501(l)(a) and 447.-301(1). The former provision states that a public employer commits an unfair labor practice when it interferes with, restrains, or coerces public employees in the exercise of any rights guaranteed them under Chapter 447, Part II. The latter provision provides:

(1) Public employees shall have the right to form, join, and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.

“The issue presented in this case, and the one decided by the hearing officer, is whether it is contrary to Section 447.301(1) for a certified union and an employer to agree to a contract provision that requires all bargaining unit employees, including those who are not members of the union, to contribute a portion of their leave time to a pool to be used for union business. The hearing officer correctly viewed that this contract provision required employees, who were not members of Local 3032, to participate in the support of the union by being required to involuntarily contribute something of ascertainable value to the benefit of the union without the employees’ authorization or consent. Thus, the mandatory sick leave deduction provision constitutes a form of union security in which all bargaining unit members contribute to the support of the union as a condition of their employment. In determining that such a security device was contrary to the rights guaranteed to public employees by Section 447.-301(1), the hearing officer did not err in examining cases construing Article I, Section 6 of the Florida Constitution, the so-called 'right to work’ provision, which provides:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.

“The Florida courts have construed this provision to prohibit, as a condition of employment, the extraction of fees from bargaining unit employees who are not members of the certified union for the purpose of aiding the union. See Schermerhorn v. Local 1625, Retail Clerks International Association, 141 So.2d 269 (Fla.1962), aff'd, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963); Florida Education Association United v. PERC, 346 So.2d 551 (Fla. 1st DCA 1977). Therefore, a construction of Sections 447.501(l)(a) and 447.-301(1) which permits a certified union and a public employer to negotiate a provision which requires nonmembers to contribute to the union something of value as a condition of their employment would render these provisions constitutionally suspect. In order to avoid this potential constructional pitfall, the hearing officer properly took into consideration Article I, Section 6 in his analysis.

“In Hotel, Motel Restaurant Employees and Bartenders Union, Local 737 v. Escambia County School Board, 7 FPER para. 12395 (1981), aff'd, 426 So.2d 1017 (Fla. 1st DCA 1983), the Commission, under somewhat similar circumstances, recognized that although it was prohibited from declaring a statute unconstitutional, it was not required to construe Chapter 447, Part II, in a constitutional vacuum, stating:

But the fact that we are without authority to rule upon the constitutionality of statutes does not mean that we must ignore the Constitution. To the contrary, where the meaning of the statute is colored by provisions of the Constitution our hope of reaching the correct understanding of that meaning lies in part in a consideration of those constitutional consequences..
(footnote omitted).

Id. at 870. Consequently, the Commission adopted a construction of the statute at issue in Escambia County School Board, which it considered harmonious with the right of public employees to engage in collective bargaining guaranteed by Article I, Section 6 of the Florida Constitution. Similarly, it was proper for the hearing officer to consider this constitutional provision in his construction of the statutory provisions at issue. However, we emphasize that our conclusion that the City committed an unfair labor practice in this case is not based upon a determination that the contract provision at issue conflicts with Article I, Section 6 of the Florida Constitution. Rather, our order in this case is limited to a finding that maintenance of the contract provision violates Section 447.501(l)(a).

“Finally, we disagree in part with the recommended remedy declaring invalid the contract provision with respect to members of Local 3032 in addition to nonmembers, and requiring reimbursement of previously deducted leave for all unit employees who request it. The record in this case does not support such a broad remedy with respect to members of Local 3032.

“The charge filed by Delaney states that his rights under Section 447.301(1) were violated because even though he was not a member of Local 3032 he was required to contribute a portion of his sick leave to the union time pool. The letter submitted by Delaney in support of the charge which protests the involuntary deduction of leave was signed by a City employee who also is not a member of Local 3032. There is no record evidence of any bargaining unit member who is a member of Local 3032 complaining about the deduction of their leave pursuant to the collective bargaining agreement. Moreover, the record is silent as to whether members of Local 3032 authorized such a deduction of leave as a condition of their membership. Under these circumstances, we believe that the remedy in this case should be limited to bargaining unit employees who are not members of Local 3032.

“Based upon the foregoing, the Commission orders the following:

“1. The City of Hialeah shall cease and desist from:

“(a) Interfering with, restraining, or coercing its employees who are not members of Local 3032 in the exercise of their right to refrain from contributing to or otherwise participating in Local 3032 or any other employee organization.

“(b) Enforcing or administrating the union time pool article of the collective bargaining agreement insofar as that provision requires the deduction of accumulated sick leave or compensatory leave credit from bargaining unit employees who are not members of Local 3032 regardless of their desire to contribute to the union time pool.

“(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Chapter 447, Part II, Florida Statutes (1981).

“2. The City of Hialeah shall take the following affirmative action:

“(a) Upon demand of any individual bargaining unit employee, who is not a member of Local 3032, restore previously deducted sick leave or compensatory leave credit to any such employee who desires such a refund.

“(b) Post the attached Notice to Employees for sixty days in conspicuous locations in all facilities of the employer where notices to unit employees are customarily posted. Copies of the notice shall be signed by the City’s authorized representative prior to posting. The City shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material.

“(c) Notify the Public Employees Relations Commission in writing within twenty calendar dates from the date of this order of the steps that have been taken to comply with this order.”

(footnote omitted)

The foregoing order of PERC is, in its entirety, AFFIRMED.

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


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. In the Interest of C.R. and C.R., Children, Appellees.
    No. AW-142.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    John L. Pearce, Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    No appearance for appellees.
   PER CURIAM.

AFFIRMED. See In the Interest of: R.W. v. Florida Department of Health and Rehabilitative Services, 409 So.2d 1069 (Fla. 2d DCA 1981).

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


author: SHIVERS, Judge.

text:
    Leonard Willie SOWELL, Appellant, v. STATE of Florida, Appellee.
    No. AX-287.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1984.
    Michael E. Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellant appeals his judgment of conviction and sentence for trespass. We reverse appellant’s conviction and remand this cause for a new trial on the basis that the trial court improperly refused to poll the jury upon appellant’s request.

Appellant, defendant in the proceedings before the trial court, was charged on October 27, 1983, with attempted burglary. Appellant pled not guilty to this charge and trial was had by jury on February 2, 1984. On the envelope for enclosing the jury’s verdict, the trial judge instructed the foreman of the jury as follows:

When the jury has arrived at a verdict please have each juror sign the verdict at the bottom and then you date the verdict and sign on the line provided on the form. Then insert the verdict in this envelope, seal the envelope and sign the envelope over the flap. Give the envelope to the baliff [sic]. The baliff [sic] will then give it to the Clerk. You and the balance of the jury may then be excused.

Thank you for serving.

The jury retired to deliberate its verdict at 12:06 P.M., February 2, 1984. At 1:43 P.M., the court reconvened. The clerk reported that she had received a sealed verdict from the bailiff at 1:04 P.M. and the bailiff reported that he had received the sealed verdict from the foreman of the jury, also at 1:04 P.M. The transcript of the proceedings shows that at this time appellant’s counsel objected to the form of the delivery of the verdict, stating that this procedure deprived appellant of his right to have the jury polled in his presence and in the presence of the court. The trial court noted that this objection was timely made prior to the submission of the envelope to the jury, that the objection was overruled at that time, and that the objection was raised again at this point for the purpose of perfecting the record. The jury’s written verdict indicates a verdict of guilty of trespass by appellant.

Appellant contends that the trial judge committed reversible error by allowing the jury to enter judgment on a sealed verdict and then depart from the courthouse, thereby denying appellant his right to poll the jury. We agree. As set forth in RCrP 3.450, “[u]pon the motion of either the State or the defendant or upon its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict.” (emphasis added). This language is mandatory and the trial judge should have strictly adhered to the procedure embodied in this rule upon appellant’s timely request. We find appellant’s request to have been timely sub judice and this point preserved for appellate review, the latter contrary to appellee’s assertion. See generally Birge v. State, 92 So.2d 819 (Fla.1957).

Moreover, we do not find the failure to afford appellant this right to be harmless error. As stated in Commonwealth v. Martin, 379 Pa. 587, 109 A.2d 325 (1954):

The action of the court in such regard [in denying the defendant’s request that the jury be polled] worked a denial of a right of the accused so fundamental as to require a retrial even though ... the jury’s verdict was fully warranted by the evidence. Yet, it is better that the case be tried again than that a precedent impairing a defendant’s right to a poll of the jury be engrafted on our criminal procedure.

Id. at 327. See also Maloney v. State, 304 A.2d 260 (Md.Ct.Spec.App.1973). We find that precedent also should not be established in this state impairing a defendant’s right to a poll of the jury upon his or her timely request.

Accordingly, appellant’s conviction and sentence for trespass is REVERSED and this cause is REMANDED for a new trial in accord with this opinion.

WENTWORTH and NIMMONS, JJ., concur.

      . The procedure utilized sub judice with respect to the jury’s verdict bears some resemblance to RCrP 3.470. However, the procedure is contrary to RCrP 3.470 in that pursuant to Rule 3.470 the jurors must reassemble in open court upon the next convening of the court, at which time the sealed envelope with the jury’s verdict "shall be opened by the court or clerk and the same proceedings shall be had as in the receiving of other verdicts.” (emphasis added).


author: GRIMES, Acting Chief Judge.

text:
    Tiodoso CISNERO, III, Appellant, v. STATE of Florida, Appellee.
    No. 84-431.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1984.
    Thomas B. Woodward of Lager, Woodward, O’Steen & Kearney, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was convicted of one count of aggravated battery and two counts of aggravated assault. The underlying conduct for all three convictions occurred at the same time and place. On February 16, 1981, he was given three consecutive sentences, each of which included a mandatory three years imprisonment because of the use of a firearm in the commission of the crimes. In this appeal from the denial of his motion for postconviction relief, appellant now attacks the imposition of three consecutive minimum mandatory sentences for crimes arising out of the same incident.

In Palmer v. State, 438 So.2d 1 (Fla.1983), the supreme court construed section 775.087(2), Florida Statutes (1981), to preclude the “stacking” of consecutive mandatory three-year minimum sentences for crimes committed at the same time and place. The case was one of first impression, and the court did not indicate whether its holding was limited to prospective application. Therefore, the issue before us is whether the principle of Palmer should be applied retroactively to appellant’s sentences.

The supreme court in Witt v. State, 387 So.2d 922 (Fla.1980), stated:

Without attempting to survey this relatively unsatisfactory body of law, we note that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.

387 So.2d at 926.

This court faced an issue of retroactivity in Hamm v. State, 380 So.2d 1101 (Fla. 2d DCA 1980), in which the defendant had filed a motion for postconvietion relief from a long term prison sentence imposed as a condition of probation. Appellate decisions rendered after the expiration of his appeal time had held that such sentences were illegal. Though not couched in terms of retroactive application, we concluded that the error was of such fundamental dimension as to warrant relief under Florida Rule of Criminal Procedure 3.850. This ruling was consistent with the proposition that sentencing errors are more likely to be considered fundamental. See State v. Rhoden, 448 So.2d 1013 (Fla.1984).

In Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984), the court held that because of its inherent potential of causing a defendant to be incarcerated for a greater length of time than provided by law, the improper imposition of a mandatory minimum sentence constituted fundamental error. Accord Pettis v. State, 448 So.2d 565 (Fla. 4th DCA 1984); Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983); Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981). Our sister court in Davis v. State, 453 So.2d 196 (Fla. 3d DCA 1984), 9 F.L.W. 1644, recently accorded the defendant relief on a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 by setting aside the multiple consecutive three-year minimum mandatory sentences for convictions of separate offenses occurring in the same incident. Thus, we conclude that appellant is entitled to the benefit of Palmer.

We reverse the order denying the motion for post-conviction relief and remand to the trial court with directions to correct the three minimum mandatory sentences so as to be served concurrently. The appellant need not be present for this purpose.

OTT and SCHEB, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Jean L. RIHON, Appellant, v. Herbert J.T. WILSON, d/b/a Wilson Insurance Agency, Appellee. Jean L. RIHON, Appellant, v. The OHIO CASUALTY INSURANCE COMPANY, etc., Appellee. Jean L. RIHON, Appellant, v. Herbert J.T. WILSON, individually and d/b/a Wilson Insurance Agency, and the Ohio Casualty Insurance Company, a foreign corporation, Appellees.
    Nos. 83-1083, 83-2580 and 83-2581.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1984.
    Rehearing Denied Nov. 27, 1984.

      Larry Klein, West Palm Beach, and Levy Shapiro Kneen & Kingcade, Palm Beach, for appellant.
    Robert D. Moses of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appel-lee — Wilson.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee — The Ohio Casualty Insurance Company.
   GLICKSTEIN, Judge.

This is a consolidated appeal of final summary judgments rendered in favor of defendants/appellees. We affirm as to ap-pellee, Wilson, and reverse as to appellee, Ohio Casualty Company.

In 1981, appellant’s amended complaint against both appellees was dismissed with prejudice as to Wilson but by stipulation between the parties the claim against Ohio Casualty Company was stayed, pending Ri-hon’s appeal against Wilson. We affirmed the dismissal with prejudice, Rihon v. Wilson, 415 So.2d 94 (Fla. 4th DCA), petition for rev. denied, 424 So.2d 762 (Fla.1982). All of the pertinent facts which led to appellant’s action are recited in our earlier decision.

Rihon’s claim as to Wilson, like the proverbial phoenix, keeps rising from its own ashes. However, subject to a contrary result by Florida’s highest court pursuant to any future review of the present decision, we hope to put the claim to rest by affirming summary final judgment in favor of appellee, Wilson. Simply stated, in our view Hamer v. Kahn, 404 So.2d 847 (Fla. 4th DCA 1981), did not create a cause of action previously unavailable to appellant when we first reviewed the case. Wagner v. Baron, 64 So.2d 267 (Fla.1953), is inappo-site because appellant could have stated a recognizable cause of action but failed to do so.

The situation is completely different as to Ohio Casualty Company. Rihon’s claim against it remained in limbo during the Wilson appeal. He had the right to amend his complaint against the insurer, notwithstanding the claim against Wilson had been eliminated. He did so, stated a cause of action, and now has the opportunity on remand to attempt to prove what he has alleged.

HERSEY and BARKETT, JJ., concur.


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

text:
    Lorenzo ARDS, Appellant, v. STATE of Florida, Appellee.
    No. 83-934.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Ards appeals his convictions for grand theft and resisting arrest without violence. The evidence at trial revealed that a person disguised as a woman and identified at trial as Ards, pointed a gun at a man who had picked him up while hitchhiking and took over $900 from the victim.

Ards contends that the trial court erred in excluding certain defense testimony. In particular, Ards sought to introduce his own testimony that one Blaine Schuller had told him that Anthony Ray Hicks had told him that he had stolen $900. Ards also sought to introduce the testimony of Wilbur Vareen that Hicks had told him he had “clipped a trick” for $900. Prior to trial, defense counsel attempted to depose Hicks and Schuller but they failed to appear. Ca-piases were issued for their arrest, but neither one was located.

Section 90.804(2)(c), Florida Statutes (1983) pertains to the declaration against interest hearsay exception and renders admissible the following statements if the declarant is unavailable:

A statement which, at the time of its making, was so far contrary to the de-clarant’s pecuniary or proprietary interest or tended to subject him to liability or to render invalid a claim by him against another, so that a person in the declar-ant’s position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. A statement or confession which is offered against the accused in a criminal action, and which is made by a eodefendant or other person implicating both himself and the accused, is not within this exception.

There is no doubt that Hicks’ purported statements were declarations against interest and that both Hicks and Schuller were unavailable. We agree with the trial judge, however, who concluded after meticulous consideration that the corroborating circumstances surrounding the statements were ambiguous, unreliable and not trustworthy. Compare Chambers v. Mississippi, 410 U.S. 284, 95 S.Ct. 1038, 35 L.Ed.2d 297 (1973); United States v. Katsougrakis, 715 F.2d 769 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984). See generally United States v. MacDonald, 688 F.2d 224 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983); United States v. Bagley, 537 F.2d 162 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977).

The other points raised by Ards have no merit.

AFFIRMED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Tried on an information charging only the minimal facts alleging a robbery (§ 812.13, Fla.Stat.), Ards was convicted of the supposed lesser included offense of grand theft, a violation of section 812.-014(2)(a), Florida Statutes. The grand theft offense was apparently assumed to be, and treated as, a lesser included offense of the charged robbery offense because the schedule of lesser included offenses adopted by the Supreme Court shows grand theft as a Category Two lesser included offense of robbery. Note that the schedule shows only petit theft (§ 812.-014(2)(c), Fla.Stat.), to be a Category one (necessarily) lesser included offense of robbery. The charging document in this case did not allege any of the eight facts or set of facts set forth in section 812.014(2)(b), Florida Statutes, the allegation of one of which is absolutely essential to allege a violation of section 812.014(2)(b), Florida Statutes.

I dissent because I continue to believe (1) that grand theft is not a necessarily lesser included offense of robbery (see the dissent in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), rev. granted, No. 64,775 (State v. Rodriquez)-, (2) that it is a violation of constitutional due process to convict a defendant of a crime not charged; and (3) that such a violation constitutes a fundamental error not subject to implied waiver as a result of the failure of defense counsel to effectively assert the constitutional right or object to its violation before the trial court. See the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), and in W.J. W. v. State, 446 So.2d 248 (Fla. 5th DCA 1984). As to the problem with the schedule of permissible lesser included offenses, see note 39 to the dissent in Baker v. State, 425 So.2d 36, at 57 (Fla. 5th DCA 1982), and note 3 to Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983), and the dissenting opinion to State v. Baker, Baker v. State, 456 So.2d 419 (Fla.1984).

      . See In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 599 (Fla.1981); In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981).


author: ORFINGER, Judge. COWART, Judge,

text:
    William C. MOUZON, Jr., Appellant, v. Ramona L. MOUZON, Appellee.
    No. 83-1028.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.

      James K. Freeland, P.A., and Joel A. Spector, Orlando, for appellant.
    Albert P. McIntosh, Jr., Orlando, for ap-pellee. .
   ORFINGER, Judge.

In this appeal from a judgment dissolving the marriage of the parties, awarding the wife custody of the three children and ordering the husband to pay monthly child support, to provide medical coverage for the children, and to pay a fee to the wife’s attorney, the husband contends that the judgment was void for lack of jurisdiction. We agree and reverse.

The wife filed a petition for dissolution of marriage and had the husband served with process in North Dakota under sections 48.193 and 48.194, Florida Statutes (1981), Florida’s Long Arm Statute. Section 48.193 says in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
⅜ ⅜ ⅝ ⅝ ⅝ ⅜
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.

The complaint did not allege that the parties had maintained a matrimonial domicile in this state at the time of the commencement of the action or that the defendant had resided in this state preceding the commencement of this action, nor did it contain any allegation that would bring it within the ambit of section 48.193. The husband filed no papers or pleadings and made no personal appearance in the cause. A default was entered against him following which the court entered the judgment appealed from. The petition for dissolution contains no allegation to show that service of process under the long arm statute is appropriate here.

Failure to adequately allege in the complaint a basis for long arm jurisdiction under 48.193 voids any service of process made pursuant to section 48.194, with the result that there was no in personam jurisdiction over the respondent husband. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Newton v. Bryan, 433 So.2d 577 (Fla. 5th DCA 1983); Wynn v. Aetna Life Insurance Company, 400 So.2d 144 (Fla. 1st DCA 1981).

Neither does the complaint or any affidavit attached to it show any of the jurisdictional requirements of section 61.132 or 61.1308, Florida Statutes (1981) so as to vest the court with custody jurisdiction, nor does the complaint even allege that the children reside in Florida, so there is no basis upon which the court could have acquired jurisdiction over the children.

Although not necessary to this decision, we feel compelled to address an issue raised in" the specially concurring opinion, lest there be any misconception among the members of the bench and the bar that the concurring opinion is the accepted view of this court., We have previously pointed out that concurring opinions have no precedential value, O’Brien v. State, 454 So.2d 675 (Fla. 5th DCA, 1984), Dunn v. State, 454 So.2d 641 (Fla. 5th DCA, 1984) but they are occasionally cited, nevertheless. We reject the view expressed in the special concurring opinion to the effect that service of process to dissolve a marriage cannot be obtained under the long arm statute.

Section 48.193(l)(e) of Florida’s long-arm statute provides in part that a person submits himself (herself) to the jurisdiction of the court for any cause of action arising from the doing of certain enumerated acts, among which is the maintenance of a marital domicile in the state, with respect to proceedings for alimony, child support or division of property in connection with an action to dissolve a marriage. Service under the long-arm statute is effected in the same manner as service within the state, namely by delivering a copy of the petition and the original process to the defendant's usual place of abode and leaving it with any person over age 15. Fla.Stat. §§ 48.194 and 48.031 (1981). Thus when properly perfected, “long-arm” personal service outside the state is the equivalent of personal service within the state.

The concurring opinion would have us believe that the legislature intended that there be two services of process in a dissolution of marriage proceeding where one spouse was out of the state and proper “long-arm” jurisdiction could be obtained against that spouse. According to the concurrence, the petitioning spouse would be required to serve the respondent by publication in order to dissolve the marriage, and simultaneously serve the respondent with “long-arm” personal service in order to secure a money judgment for alimony, child support, and would not be entitled to claim attorney’s fees because that claim isn’t justified under either method of service. To the contrary, we believe any such construction of the statute is strained, and we cannot ascribe any such intention to the legislature, when no such construction is required, and where the legislative intent in that regard seems so clear. A dissolution of marriage clearly is a cause of action that can arise out of the maintenance of a marital domicile in this state, as does the claim for alimony, child support, or division of property on which it depends. The claim for attorney’s fees, where properly allowable, also arises out of that relationship when the marriage is dissolved.

Section 48.193 permits personal service of process upon absent spouses “[wjith respect to proceedings for alimony, child support or division of property in connection with an action to dissolve a marriage ...” under certain specified conditions. The verb “connect” means “1. to join or fasten together; link; unite. 2. To associate or consider as related.” The American Heritage Dictionary of the English Language, 282 (1979). The noun “connection” has been defined as “the state of being connected or joined; union by junction, by an intervening substance or medium, by dependence or relation ...” Black’s Law Dictionary 274 (rev. 5th ed.1979). Clearly then, the legislature has said that where personal service (albeit under the long-arm statute) is available, that service shall be used for both the dissolution action and the money demands.

In Palmer v. Palmer, 353 So.2d 1271 (Fla. 1st DCA 1978) the court noted that prior to the enactment of section 48.-193(l)(e) and (2), and 48.194, a plaintiff had to obtain personal service of process upon a defendant by serving the defendant personally in Florida. By this service plaintiff achieved in personam jurisdiction. Where personal service was impossible the only alternative open to plaintiff was to obtain service of process by publication. This type of service resulted in only in rem jurisdiction. The Palmer court recognized that with the enactment of § 48.193 a plaintiff in a dissolution of marriage action now has three methods by which he or she may serve a spouse: in-state personal service, long-arm personal service and constructive service, depending on “the alternative available and the option of the plaintiff.” Id. at 1272.

Long-arm personal service is a product of the realization that it is unreasonable to require the plaintiff to lure the prospective defendant into the state so that in person-am jurisdiction could be achieved. It is clear that in-state personal service (a single process) will subject a properly served defendant to the jurisdiction of the court for purposes of dissolving the marriage as well as for the appropriate money demands and child custody. Section 48.193(2) makes no distinction between in-state personal service and out-of-state personal service, but rather treats them the same way, viz:

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state. [Emphasis added].

The cornerstone of any analysis of long-arm personal service and its due process implications is International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) in which the United States Supreme Court reasoned:

Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 55 L.Ed. 278, 132 A.L.R. 1357.

The adequacy of personal service under long-arm statutes similar to Florida’s has been recognized by both state and federal courts. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) the court stated:

Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding_ Of course personal service even without the jurisdiction of the issuing authority serves the end of actual and personal notice, whatever power of cumpulsion it might lack. Id. at 313, 319, 70 S.Ct. at 657, 659.

More recently, in Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) the court observed that it has long been the rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff may be entered only by a court having jurisdiction over the person of the defendant. The existence of personal jurisdiction in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought. Personal service has always been regarded as the preferred method of accomplishing this.

Service by publication under 49.011 may be made in dissolution proceedings only where personal service of process cannot be had. Fla.Stat. § 49.021 (1981). This is consistent with Mullane, supra, in which the court held that resort to publication may be had “as a customary substitute [for personal service] in another class of cases where it is not reasonably possible or practicable to give a more adequate warning.” Id. 339 U.S. at 317, 70 S.Ct. at 658.

Constructive service is strictly construed against a plaintiff who seeks to obtain service of process under it because the legislature intended personal service in preference to service by publication. As stated in GMAZ v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970), quoting from the holdings in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926) and Klinger v. Milton Holiday Company, 136 Fla. 50, 67, 186 So. 526, 534 (1938):

When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit. [The] full test of this principle is whether the complainant reasonably employed knowledge at his command in making the appropriate effort spoken of.

See, McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945); Huguenor v. Huguenor, 420 So.2d 344 (Fla. 5th DCA 1982); Mayo v. Mayo, 344 So.2d 933 (Fla. 2d DCA 1977).

In Schroeder v. Schroeder, 430 So.2d 604 (Fla. 4th DCA 1983), the court suggested that personal service under section 48.-193(l)(e) was appropriate in suits for alimony where such proceedings are also seeking a decree of dissolution. The court indicated that personal service on persons in foreign jurisdictions is clearly appropriate to acquire jurisdiction for the portion of the petition seeking a dissolution of marriage. In the earlier case of Arnstein v. Arnstein, 422 So.2d 1052 (Fla. 4th DCA 1982), the petitioner/husband “inappropriately chose to effect personal service on his wife in New Jersey under the long-arm statute.” The wife was not and had never been a resident of Florida. The court stated, however, that the court did have subject matter jurisdiction over the dissolution proceeding because it was indisputable that the wife had had adequate notice forestalling any due process attack on the final judgment. The court recognized that while section 49.-011, Florida Statutes (1981) provides that service of process “by publication may be had in any court on any person mentioned in section 49.021 in any action ... (4) for dissolution of marriage; ...,” section 49.-021 limits this by providing that service may be by publication only “where personal service of process cannot be had, ....” The opinion concluded that this “appear[s] to contemplate personal service of process in preference to or at least as the substantial equivalent of service by publication where the current address of the party to be served is known.” Id. at 1053. We need not travel that far in this case, but it is important to note that at least one court has found the statute appropriate for a dissolution proceeding only. It is difficult to perceive a different interpretation where alimony, child support and division of property is also sought in connection with the dissolution action so that the action clearly falls within the statute.

Arnstein recognizes that the purpose of service under these circumstances is not to acquire or exercise jurisdiction, but is to give notice in a due process sense. Thus, the method selected should be one reasonably calculated to bring the proceedings to the attention of the party upon whom service is sought. See Mullane, supra; Walton v. Walton, 181 So.2d 715 (Fla. 2d DCA 1966).

Because long-arm personal service is the most likely method by which to afford the respondent in a dissolution suit notice of the proceedings where in-state personal service is not available, and because the statutory framework for all forms of service is to employ the method which is best calculated to apprise the defendant of the pendency of the litigation, there is neither a statutory nor a due process reason to not approve the use of long-arm service under § 48.193 for the dissolution itself, at least in cases where alimony, child support or division of property is sought in connection with the dissolution. Assuming proper service of process, attorney’s fees can also be recovered in the same manner as would be available had the respondent spouse been served within the state. The statute makes no distinction between the two types of personal service and we should not create one.

The final judgment is

REVERSED.

DAUKSCH J„ concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

This domestic relation case involves the allegations in the complaint, the process, and the service of process necessary to acquire jurisdiction over the person of the defendant and the res of the marriage sufficient for the court to adjudicate a dissolution of marriage, child custody, child support and attorney’s fees.

The wife’s entire complaint, filed November 10, 1982, is as follows:

THE ABOVE NAMED Petitioner would show this Court as follows:
1. This is an action for Dissolution of Marriage.
2. The marriage between the parties is irretrievably broken.
3. Petitioner has been a resident of the State of Florida for at least six (6) months prior to the filing of this Petition.
4. The parties were married on or about: May 1, 1979 In Orange County Courthouse and separated on or about August 30, 1981.
5. Petitioner is not a member of the Armed Forces of the United States.
6. Respondent is a member of the Armed Forces of the United States.
7. Petitioner resides at 3358 Waller Place, Orlando, Florida 32805.
8. Respondent resides at 114-3 Del Mar Ct., Minot, ND. 58705.
9. There were three children born of this marriage, to-wit: Vincent Albert Mouzon, 3 yeard (sic) old, born April 9, 1979; Raymond Cole Mouzon, 14 months old, born November 7, 1980; and Melisa Christina Mouzon, 3 months, born January 21, 1982. The Petitioner/Wife seeks custody of the minor children along with support for said children.

The information under oath required by the “Uniform Child Custody Jurisdiction Act” (§§ 61.1302-61.1348, Fla.Stat.) was not contained in the complaint nor in an affidavit attached thereto as required by that statute. An affidavit was filed December 9, 1982, but it did not allege the children’s then present address and merely gave some time periods as to the places of residence of the children Vincent and Raymond. The affidavit is not clear but the last listed time period as to any child is May 15, 1981, a time about eighteen months before the filing of the complaint.

The husband-father filed no pleadings or papers in the cause and made no personal appearances before the court nor did he do anything else by which he submitted himself to the jurisdiction of the trial court. The trial court entered a default against the husband and a final judgment dissolving the marriage, awarding the wife custody of the three children and ordering the husband to pay monthly payments of child support, to provide medical coverage for the children and to pay a fee to the wife’s attorney. The husband appeals claiming, correctly, the trial court did not have jurisdiction.

Of course the circuit court had jurisdiction over the subject matter. The only questions relate to whether that jurisdiction was properly invoked by essential allegations in the complaint and properly perfected by the service of adequate process.

Basically there are three types of process on individuals;

(1) PERSONAL SERVICE: Personal service of process under section 48.031, Florida Statutes, must be used in all actions against natural persons, if possible, and when correctly accomplished is good in all kinds of law actions for all purposes. This service must be made within the State of Florida by a sheriff or other authorized process server. Where such personal service cannot be had two general types of substituted or constructive service of process may be available, i.e., (2) process by publication and (3) process under “long-arm” statutes.

(2) PROCESS BY PUBLICATION: Service of process by publication under section 49.021, Florida Statutes, can be used only if personal service cannot be had and then only in the in rem and quasi in rem actions and proceedings specified in section 49.011, Florida Statutes. Process by publication cannot be the basis for money judgments and other judgments which determine personal rights and obligations, and this includes judgments granting or denying alimony and child support. Section 49.-011(4), Florida Statutes, authorizes service of process by publication in actions for dissolution of marriage.

(3) PROCESS BY LONG-ARM STATUTE: In recent years, many states have enacted so-called “long-arm statutes,” authorizing constructive or substituted service of process on nonresidents doing business or other acts within the forum state as the basis for obtaining judgments for money or which determine other personal rights and obligations. When such process is based on certain “minimum contact” that the defendant has had within the forum state, such statutes have been held not to violate constitutional requirements pertaining to due process of law. When applicable, and properly perfected, jurisdiction acquired under a long-arm statute can support a money or other in person-am judgment. The general Florida long arm statutes are sections 48.193 and 48.-194, Florida Statutes. In relevant part section 48.193 provides as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
* sfc * sfc * >jt
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether'cohabiting during that time or not_
(3) Only causes of action arising from acts or omissions enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section, unless the defendant in his pleadings demands affirmative relief on other causes of action, in which event the plaintiff may assert any cause of action against the defendant, regardless of its basis, by amended pleadings pursuant to the rules of civil procedure, (emphasis supplied)’

The trial court in this case lacked jurisdiction three different ways:

(1) AS TO CHILD CUSTODY: The trial court did not acquire jurisdiction to make a child custody determination under section 61.1308, Florida Statutes (the Uniform Child Custody Jurisdiction Act [“UCCJA”]), because of the inadequate compliance with the requirements of section 61.132, Florida Statutes. Even if the trial court could acquire in rem jurisdiction over the child custody issue independent of the provisions of the UCCJA, it did not do so in this case because the complaint did not contain an allegation that the children were physically present within the state which is a prerequisite to perfecting in rem jurisdiction and, further, there was no compliance with the requirements of chapter 49 in order to perfect in rem jurisdiction as to the child custody issue by service of process by publication. Apparently pursuant to perceived ethical duty counsel for the wife filed with the trial court a copy of a letter he received from counsel for the husband dated December 29, 1982, which is part of the record on appeal. This letter was not filed by the husband’s counsel and does not constitute an appearance or a pleading and is not verified and does not constitute evidence. However, it recites that the child Raymond had resided with the husband in North Dakota since July or August, 1981, and serves to illustrate the insufficiency of the wife’s compliance with essential requirements of the UCCJA.

(2) AS TO CHILD SUPPORT: The minimum contacts or acts which section 48.-193(l)(e), Florida Statutes, requires for use of the long-arm statute in those domestic relations matters to which it applies, which includes child support, are that (1) the defendant “maintain a matrimonial domicile in this state at the time of the commencement of this action” or that (2) “the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.”

The language in section 48.193(3), Florida Statutes, qualifies and restricts “the acts or omissions” enumerated in section 48.- " 193(l)(e) [and in the other subheadings under section 48.193(1)] so that “only causes of action arising from” such acts or omissions (minimum contacts) occurring in Florida may be asserted against a defendant in an action in which jurisdiction is based on the long-arm statute. This statutory provision is based on constitutional necessity and means that there must be a nexus between the acts relied oh as a minimum contact and the cause of action asserted. See Soule v. Rosasco-Soule, 386 So.2d 862 (Fla. 1st DCA 1980).

As to the award of a money judgment for child support the attempted use of the long-arm statute to acquire jurisdiction was ineffectual in this case because the complaint failed to allege, as is essential, that the defendant did either of the two acts set forth in the statute, see Rosen v. Rosen, 306 So.2d 546 (Fla. 3d DCA 1975) (a separate maintenance action), and failed to allege facts demonstrating how the cause of action for child support arose from the doing of either of those acts. See Soule, supra. See also American Motors Corporation v. Abrahantes, 446 So.2d 240 (Fla. 3d DCA 1984), and cases cited therein.

(3) AS TO THE DISSOLUTION AND ATTORNEY’S FEES: Lastly, but most importantly, the trial court not only lacked jurisdiction because of the insufficiency of the essential allegations and proof as to the defendant’s acts (minimum contacts) and their nexus to the cause of actions covered by the long-arm statute; the general long arm statute (§ 48.191(l)(e)) does not apply to causes of action to dissolve a marriage or claims for attorney’s fees. The general long arm statute (§ 48.193(l)(e)) applies only to independent actions for support of dependents (§ 61.09, Fla.Stat.) and to the three claims for relief embraced in the statute (alimony, child support and division of property) and then only when the latter three claims are alleged ancillary to (“in connection with”) a cause of action for dissolution of marriage. There is no separate specific long-arm statute that relates to dissolution of marriage in the manner that parts of the UCCJA authorize long arm jurisdiction in child custody cases. Accordingly, jurisdiction over the dissolution cause of action itself can only be obtained either by personal service of process under section 48.031, Florida Statutes, or by service of process by publication under section 49.011(4), Florida Statutes, but not under section 48.193(l)(e), Florida Statutes.

This individual opinion, originally written as a majority opinion, is not intended to have anyone believe anything they do not want to believe. Everyone is free to believe as they choose. Cautious attorneys will recognize the great risk of harm of bottoming the jurisdiction of the court in a dissolution case upon a statute of questionable application. Because of inherent limitations in the concept of state territorial jurisdiction service of process of a state court made in a foreign state by a foreign sheriff does not and cannot have the same effect as the perfection of jurisdiction of a Florida court by personal service of process in Florida by a Florida sheriff.

Section 48.193(1) enumerates certain causes of action and correlates them with certain acts (minimum contacts) with which the legislature perceives the causes of action have the nexus required by constitutional due process concepts. In this undertaking the statute does well but it is not perfectly drafted. Read with the necessary underlying objection in mind it is apparent that the broad unqualified clause “any cause of action arising from the doing of any of the following” means “any of the following [acis]” and connects directly with only the acts set forth in sub-subpara-graphs, (a), (b), (c), (d), (f), and (g). Sub-subparagraph (l)(e) differs substantially in form, style and effect, from the other sub-subparagraphs. Before describing the essential acts (“minimum contacts”), with the necessary nexus, sub-subparagraph (l)(e) first further qualifies and limits the preceding clause “any cause of action” clause and the effect of the subsequently delineated two acts constituting the required “minimum contacts” (the maintaining of a domicile or residing in Florida), to one independent “action” for support of dependents and three “proceedings” and further then restricts the application of the long-arm statute ⅞ to instances where those three “proceedings” are themselves connected with an action for dissolution of a marriage. The statute on its face reveals that the draftsman knew, and was making, a careful distinction between “acts,” “causes of action,” “actions,” and “proceedings.” In view of the constitutional due process limitations these distinctions and words are very meaningful. To read the statute to connect the “any cause of action” clause directly and without qualification to the two acts or “minimum contacts” described in sub-subparagraph (l)(e) (the maintaining of a domicile or residing) is to read out of the statute and to ignore all of the carefully worded qualifying language and the constitutional due process limitation which that language recognizes and effectuates. To say you are going to feed all mares, mules and oxen connected to wagons means you are going to feed a limited class of three types of animals; it does not mean you are going to feed all animals that can be connected to wagons. And it certainly does not mean you are going to feed the wagons. Neither a recital of the general history or good purpose of long-arm statutes nor the advantages of applying the statute to causes of actions for dissolution of marriage, nor examples where others have assumed that the statute does apply to dissolution actions, nor wishing, will put necessary words into, or take applicable limiting words out of, this statute. The purpose of publishing this opinion is to point out this problem and to explain why this statute may have been so written and so limited.

      .The complaint in its entirety says:
      THE ABOVE NAMED Petitioner would show this Court as follows:
      1. This is an action for Dissolution of Marriage.
      2. The marriage between the parties is irretrievably broken.
      3. Petitioner has been a resident of the State of Florida for at least six (6) months prior to the filing of this Petition.
      4. The parties were married on or about: May 1, 1979 In Orange County Courthouse and separated on or about August 30, 1981.
      5. Petitioner is not a member of the Armed Forces of the United States.
      6. Respondent is a member of the Armed Forces of the United States.
      7. Petitioner resides at 3358 Waller Place, Orlando, Florida 32805.
      8. Respondent resides at 114-3 Del Mar Ct., Minot, ND. 58705.
      9. There were three children born of this marriage, to-wit: Vincent Albert Mouzon, 3 yeard (sic) old, born April 9, 1979; Raymond Cole Mouzon, 14 months old, born November 7, 1980; and Melisa Christina Mouzon, 3 months, born January 21, 1982. The Petitioner/Wife seeks custody of the minor children along with support for said children.

      . "Every party in a custody proceeding, in his first pleading or in an affidavit attached to that pleading, shall give information under oath as to the child's present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period." § 61.132, Fla.Stat.

      . Fla. Const.Art. V, § 5(b); § 26.012(2)(c), Fla. Stat. (1981).

      . As to court subject matter jurisdiction and its invocation by pleadings and perfection by service of process, see generally Fla. Power & Light Co. v. Canal Authority, 423 So.2d 421 (Fla. 5th DCA 1982), rev. den., 434 So.2d 887 (Fla.1983).

      . Section 49.021, Florida Statutes, relating to service of process by publication, commences with the qualifying words, "Where personal service of process cannot be had

      . See also Herbert v. Bicknell, 233 U.S. 70, 34 S.Ct. 562, 58 L.Ed. 854 (1914); Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).

        . See Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517 (1895).

      . See Pawley v. Pawley, 46 So.2d 464 (Fla.1950), 28 A.L.R.2d 1358, reh. den., 47 So.2d 546 (Fla.1950), cert. den., 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950); Hunter v. Hunter, 359 So.2d 500 (Fla. 4th DCA 1978), rev. den., 365 So.2d 712 (Fla.1978).

      . See Palmer v. Palmer, 353 So.2d 1271 (Fla. 1st DCA 1978); Rosen v. Rosen, 306 So.2d 546 (Fla. 3d DCA 1974).

      . Notwithstanding that the title to section 48.-194, Florida Statutes, refers to "personal service outside state” and the argument that "personal service" under the long-arm statute is "better" than service of process by publication, service under the long-arm statute is not “personal service" according to the classical definition of that term, which is limited to service by an officer of the court made within the geographic or territorial jurisdiction of the court. Neither is long-arm service, in all respects, the exact constitutional, substantive, or legal equivalent of personal service nor can it be substituted at will for personal service or service by publication merely because it is arguably "better" service. Each method of service of process to perfect the jurisdiction of a court has its own exclusive place and use.

      . When the long-arm jurisdictional due process problem also involves a conflict of laws issue. the "minimum contact” required to satisfy due process may also be a “significant connection" or "significant relation” relevant to the conflict issue. See § 61.1308(l)(b)l., Fla.Stat.-

      . The United States Supreme Court has stated that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The non-resident defendant’s "minimum contacts” with a foreign state must be such as to make it reasonable to require the non-resident to go to that foreign state to there defend a law action resulting from the non-resident’s prior "minimum contacts” with that foreign state. Due process requires that for use of long-arm service of process in any particular type of case it must be reasonable to say that the defendant’s "connection and conduct with the forum state are such that he should reasonably anticipate being haled into court there,” see World Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

      . There are other Florida statutes providing for substituted service of process as to specific causes of action which are based on the long-arm concept. See, e.g., §§ 48.171, 48.181, 48.19, 61.-1308-1312, Fla.Stat.

      . This case illustrates that while allegations sufficient to state a cause of action for dissolution are now so simple lay persons, with the help of forms, can plead them, nevertheless, the invocation and perfection of the court's jurisdiction in domestic relations cases may not be so simple.

      . As to a child custody issue the Uniform Child Custody Jurisdiction Act ("UCCJA") enacted in Florida in 1977 provides for a long-arm type of substituted service of process In a wide variety of circumstances. See § 61.1312, Fla.Stat. Also see Annot., Uniform Child Custody Jurisdiction Act, 96 A.L.R.3d 968, 981, § 5[a] (1980). Before enactment of the UCCJA, in the absence of personal service of process on the defendant parent, jurisdiction as to a child custody controversy could be perfected on a nonresident parent only by service of process by publication in an in rem action. This was done by analogy to the theoretical basis by which in rem jurisdiction was obtained in an action for divorce or dissolution of marriage. In the latter type of action the marriage itself was considered to be a res within jurisdiction of the court when one party to the marriage resided within the territorial limits of the court. As to the child custody issue the child was considered the res and the court had in rem jurisdiction to initially adjudicate its custody but only if the complaint alleged, and the plaintiff proved, that child was physically present within the state. See Yelton v. Yelton, 295 So.2d 119 (Fla. 4th DCA 1974); Castle v. Castle, 247 So.2d 455 (Fla. 4th DCA 1971); Reinhart v. Reinhart, 291 So.2d 103 (Fla. 1st DCA 1974); Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971); Powell v. Powell, 242 So.2d 138 (Fla. 1st DCA 1970), rev. den., 258 So.2d 818 (Fla.1972); Nieburger v. Nieburger, 214 So.2d 382 (Fla. 1st DCA 1968); Smith v. Davis, 147 So.2d 177 (Fla. 1st DCA 1962). An earlier Florida case alluded to the theoretical basis as being the child's domicile. See Dorman v. Friendly, 146 Fla. 732, 1 So.2d 734 (1941). Also see Annot., Jurisdiction of court to award custody of child domiciled in state but physically outside it, 9 A.L.R.2d 434, 439, 440 (1950). The absolute requirement of physical presence (or domicile) was based on the need of the court to coerce obedience to its orders, an innate requirement of court jurisdiction. In such cases service of process by publication was apparently had under section 49.011(11), Florida Statutes. Section 61.1308(l)(c) relies on the physical presence of the child in this state but other parts of the UCCJA purport to both expand and limit the in rem concept of jurisdiction in child custody cases. Section 61.1308(3) states that physical presence of the child is not a prerequisite for jurisdiction to determine custody. Section 61.-1308(2) provides that physical presence in this state of the child “is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination”. This latter provision seems to legislatively destroy the basis for a trial court to acquire in rem jurisdiction to adjudicate child custody by service of process by publication on a nonresident parent as was done before enactment of the UCCJA. The legislature apparently intended to destroy in rem court jurisdiction over child custody questions in order that the philosophy, objectives and provisions of the UCCJA would be paramount by making the substituted long-arm service of process provided in the UCCJA exclusive except in cases of personal service of process.

        .See §§ 49.021(1); 49.031; 49.041; 49.08; 49.-10; 49.12, Fla.Stat.

      . See Annot., Long-arm statutes: Obtaining jurisdiction over nonresident parent in filiation or support proceedings, 76 A.L.R.3d 708 (1977).

      . This appeal does not involve the question of the sufficiency of the two acts set forth in the statute to meet the constitutional requirement of a "minimum contact” of a defendant with a forum state in the context of a particular cause of action. Nor does it involve any question as to a substantive causal nexus between a nonresident parent’s "minimum contact” with a forum state and any specific assertion of one of the domestic relations' causes of actions or claims for relief named in the statute. There are substantial substantive questions of law and fact in every use of this statute.

      . A legal precedent is a binding determination of a point of law by a court in an actual case in which that point is properly presented and duly considered and in which that determination is essential to the rationale employed and the conclusion reached in that case. When an appellate opinion assigns multiple reasons to support its determination of a point of law, or multiple points of law to support its, conclusion, each reason or point becomes embodied in the rationale and resolution or determination of the case and has precedential value. Precedent has stare decisis authority as being binding on courts of a lower rank in other, subsequent cases presenting the same point of law. Words or comments in appellate opinions that are not a necessary part of the rationale or conclusion in that case are obiter dictum and have no precedential value or stare decisis effect. When an opinion expressly limits the rational basis of its conclusion, to the exact same extent it necessarily limits the perimeter of that decision’s precedential basis and comments in the opinion relating to other reasoning not relied on in it, being unnecessary to support the decision in that case, is for that reason dicta and is without precedential value or stare decisis authority. Legal principle and reasoning in separate opinions of judges are not offered as authoritarian legal precedent but are properly submitted as being additional or better rationale for the conclusion in the court’s opinion, in the case of specially concurring opinions, or for a different conclusion, in the case of dissents. Separate opinions are the opinions of the individual judge and do not constitute the law of the case nor the basis of the ultimate decision of the court. If this obvious statement needs citation of authority, Greene v. Massey, 384 So.2d 24 (Fla.1980), is precedent, not dicta. Concurring opinions and dissents are cited not for their authority or source but for the inherent value of the legal reasoning they contain and for convenience or from a sense of professional courtesy or intellectual integrity. Individual judge’s opinions are useful for the improvement of the law and offend no one tolerant of other opposing views. Dicta intentionally inserted in the court’s opinion is far more likely than individual opinions to mislead and cause harm by impeding the proper presentation of the point because such dicta is more likely to be mistaken as binding precedent.

      . This conclusion should not be considered to be a legislative oversight for the reason that, as to causes of action for dissolution of marriage, in rem jurisdiction perfected by service of process by publication under section 49.011(4), Florida Statutes, is both legally adequate and reasonably convenient and it avoids the constitutional due process problems involved in the requirement of minimum contacts and of a nexus between such contacts and asserted causes of action, which contacts and nexus are inherent in acquiring the type of substituted in personam jurisdiction authorized by "long-arm" statutes.

      . See note 11, supra.

      . See note 11, supra. The constitutional necessity for a nexus between the defendant’s acts constituting the “minimum contacts” in a foreign state necessary for the law to base an implication or assumption that by such actions the defendant should have reasonably assumed and understood that he could be haled into court in the foreign state to there defend an action arising out of such acts, is sorely strained by the lack of a genuine causal nexus between the acts of maintaining a domicile, or at any time in the past residing in Florida, and proceedings for alimony, child support or equitable division of property. The causal relation between the fact of merely living in Florida and a marriage being irretrievably broken is even more difficult to honestly rationalize. In truth, the weather and water in Florida are no more likely than elsewhere to cause marriages to become irretrievably broken.


text:
    Charles E. KINKER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1851.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Sam Baxter Bardwell of Studstill & Vance, Titusville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Reading the search warrant in this case is a whole, see Joiner v. City of Lakeland, 90 So.2d 118 (Fla.1956), the word “contraband” in the command clause of the warrant clearly refers to the controlled substances (cannabis and lysergic acid diethyl-amide) mentioned earlier in the warrant and specifies, with sufficient particularity, the things authorized to be searched for, and seized from, the defendant’s home. See Carlton v. State, 449 So.2d 250 (Fla.1984). Also see United States v. Leon, — U.S. -, 104 S.Ct. .3405, 82 L.Ed.2d 677 (1984).

AFFIRMED.

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


author: BARFIELD, Judge.

text:
    Betty LONG, Appellant, v. PUBLIX SUPER MARKETS, INC., Appellee.
    Nos. AU-468, AV-424.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Kurt Andrew Simpson and Michael V. Mattson of Law Offices of Kurt Andrew Simpson, Jacksonville, for appellant.
    Carl K. Staas and James H. McCarty, Jr. of Boyd, Jenerette Staas, Joos, Williams & Felton, Jacksonville, for appellee.
   BARFIELD, Judge.

In this appeal of a personal injury case the plaintiff, Betty Long, seeks review of a summary judgment favorable to the defendant, Publix Super Markets, Inc., on the issue of punitive damages, and the refusal of the trial judge to instruct the jury on loss of ability to earn money in the future as an element of plaintiffs damages.

The appeal of the summary judgment on punitive damages is without merit and the judgment on that issue is AFFIRMED.

We agree with the appellant that she was entitled to a jury instruction on loss of ability to earn money in the future. The record reflects that there was evidence before the jury that plaintiff had a five percent permanent disability of her arm and that she was ten percent less efficient than she was before the injury. In addition to the evidence of physical impairment, the jury had evidence of plaintiffs current dollar earnings which provided a basis for determining pecuniary value. All that is required to justify the instruction is that there be reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss. Allstate Insurance Co. v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979). The fact that plaintiff at the time of trial is earning as much or more than she did prior to the injury does not preclude her from asking the jury to consider loss of future earning capacity. Such circumstances may make her burden of persuasion more difficult, but they do not defeat her opportunity to try.

There is a certain logical appeal to the trial court’s view that the jury not be burdened with the issue of future loss of earning capacity when faced with no present loss, but rather an increase, in earnings and a current employer’s testimony (produced by the defense) that plaintiff’s future with that employer was “excellent.” However, should the jury choose to look beyond this less-than-guaranteed employment, it may determine the effect of the impairment on the plaintiff’s future earning capacity.

The judgment for damages is REVERSED and the case is REMANDED to the trial court for a new trial on total compensatory damages.

JOANOS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Wallingford H. BOWLIN, Appellant, v. Rosalind BOWLIN, Appellee.
    Nos. AV-47, AW-150.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Harry B. Mahon of Mahon, Mahon & Farley, P.A., Jacksonville, for appellant.
    Lyman T. Fletcher of Fletcher & Fletcher, Jacksonville, for appellee.
   WIGGINTON, Judge.

The husband appeals and the wife cross appeals the final judgment of dissolution of marriage and order awarding attorney’s fees. By the final judgment the trial court awarded to the wife, “[a]s lump sum alimony and in the equitable distribution of the assets of the parties,” the husband’s “right, title and interest” in and to the “Medical Center” property (excluding the husband’s personal property and medical practice equipment), the leases pertaining thereto, including the lease with the husband’s professional association, and rehabilitative alimony of $1,000 per month for eighteen months. However, the wife was denied any interest or special equity in the marital home. To the husband was awarded, “in the equitable distribution of the assets of the parties,” the wife’s interest in the “Ortega Racquet Club and Fitness Center” (the spa). By separate order, the husband’s motion for attorney’s fees was denied and he was directed to contribute to the payment of the wife’s attorney’s fee and costs the sum of $10,750.

Both parties argue that the trial court erred in failing to partition the medical center and spa properties and in failing to determine the special equities of either party in these properties. Both challenge the attorney’s fee award on predictably diametrically opposed grounds. Additionally, the wife alleges error in the amount of rehabilitative alimony and in the court’s failure to grant her a special equity in the marital home. Upon careful examination of the record in this cause, we affirm in part and reverse in part, and remand for further proceedings.

We affirm the court’s award of attorney’s fees to the wife, as there is ample evidence of the wife’s need and the husband’s ability to pay, to support it. We also affirm the award of rehabilitative alimony and the denial to the wife of any interest or equity in the marital home. The evidence supports the trial court’s decision and we find no abuse of discretion.

However, we reverse the trial court’s equitable distribution of the medical center and spa properties. In her amended counter-petition for dissolution of marriage, the wife prayed for a determination of her special equities in these properties and, inter alia, for partition of the properties. Although the husband’s petition for dissolution was more general, he prayed for an order “temporarily and permanently enjoining the wife from harassing, annoying or coming about the husband at his place or places of employment and from' coming about or interfering in the operation or management of his lawful business .... ” The wife included a similar prayer for relief in her counter-petition.

The record and transcript of the testimony elicited at the final hearing clearly establish conduct on the part of both parties to be so acrimonious as to warrant a complete severance of the relationship. Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980). The dissolution plan carefully fashioned by the trial court, though admirably solomonic, has apparently placed the parties in a situation they mutually find to be intolerable. Both the husband, in his appeal, and the wife, in her cross appeal, argue for partition and a determination of their special equities in the property. We find ample evidence in the record indicating the wife made significant contributions to the purchase and/or construction and equipping of the medical center and spa properties. The trial court’s failure to recognize the wife’s special equities under these circumstances is reversible error. Landay v. Landay, 429 So.2d 1197 (Fla.1983); Swisher v. Swisher, 454 So.2d 83 (Fla. 1st DCA 1984). Consequently, we reverse and remand for further proceedings to effect a partition of the disputed property and a determination of the parties’ respective special equities, according to the Landay formula.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

JOANOS and BARFIELD, JJ., concur.


author: MILLS, Judge.

text:
    Gregory Lamar WALKER, Appellant, v. STATE of Florida, Appellee.
    No. AW-351.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Michael Allen, Public Defender; Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   MILLS, Judge.

Walker appeals from a sentence imposed under the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure, and from the imposition of assessments pursuant to Sections 960.20 and 943.25(4), Florida Statutes, and attorney’s fees pursuant to Section 27.56, Florida Statutes. We reverse on both issues.

Walker affirmatively elected to be sentenced pursuant to Rule 3.701 at his sentencing hearing on 7 November 1983. His “primary offense at conviction,” Rule 3.701(d)(3), was robbery, a second degree felony; he received 50 points in this category. He received an additional 7 points for the “additional offense at conviction,” Rule 3.701(d)(4), of burglary of a structure. The 57-point total translated to a guidelines sentence range of “community control or 12-30 months incarceration.” Form 3.988(c), Fla.R.Cr.P.

Despite the recommended range, the court imposed sentences of 30 months incarceration plus 5 years probation for the conviction of burglary of a structure, sentences to run concurrently. In each case, Walker was ordered to pay $15 and $4, pursuant to Sections 960.20 and 943.25(4), respectively, as a condition of probation. He was also ordered to pay an attorney’s fee of $150 “in reference to services received in reference to these two cases,” pursuant to Section 27.56, Florida Statutes.

On appeal, Walker argues that the court exceeded the guidelines range without providing the written reasons therefor required by Rule 3.701(d)(12), Fla.R.Cr.P. We agree. Rule 3.701(d)(12) requires that a sentence be imposed for each offense but states that the total sentence cannot exceed the guidelines without written explanation. The note to the rule amplifies this provision, stating that: “If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarceration portion imposed shall not be less than the minimum of the guidelines range and the total sanction imposed cannot exceed the maximum guideline range.”

In this case, the maximum guideline range was 30 months incarceration; the trial court’s sentence of 30 months plus 5 years probation exceeds that range. While this is permissible if appropriate written reasons are provided therefor, no such reasons were given by the trial court, and the sentence must be reversed. The State argues that the note to Rule 3.701(d)(12) relied on by Walker was amended on 8 May 1984 to provide that the limit on the total sanction is “the term provided by general law,” not “the maximum guidelines range,” thereby rendering this sentence proper. This argument must fail. In Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984), involving similar factual circumstances, the court acknowledged the amendment to the note, but held that “the amended rule cannot be applied retroactively.” Id. at 496, n. 1. Therefore, the pre-amendment version of the rule applies to Walker, who was sentenced on 7 November 1983, and the total sanction herein improperly exceeds the maximum guidelines range.

We must also reverse on the issue of the assessments and attorney’s fees imposed on Walker. In Jenkins v. State, 444 So.2d 947 (Fla.1984), the Florida Supreme Court held that costs under Sections 960.20 and 943.25(4) could be imposed against an indigent only if he is given adequate notice and a full opportunity to object to the assessments. Although the State argues that Walker did receive the required notice by way of an order to show cause why attorney’s fees and costs should not be assessed against him, the assessment referred to in the order was “pursuant to Section 27.56, Florida Statutes.” The costs described in that section do not include the assessments under Sections 960.20 and 943.25(4); therefore no notice of those assessments was provided Walker by the order relied on by the State. Also unavailing is the State’s attempt to distinguish Jenkins by arguing that Walker was “less indigent” than the defendant in that case. The trial court’s finding that Walker was “indigent within the meaning of the law” is sufficient to require the application of the Jenkins rule. The imposition of these assessments is therefore reversed, without prejudice to the state to tax them in accordance with the law.

While Walker did receive an “Order to Show Cause” regarding imposition of the attorney’s fee pursuant to Section 27.56, Florida Statutes (1983), the order did not fully comply with the statutory requirement of adequate notice. Section 27.56(7) states that “[t]he court having jurisdiction of the defendant may ... determine the value of the services of the public defender ... at which time the defendant ..., after adequate notice thereof, shall have opportunity to be heard and offer objections to the determination.” Here, the court’s determination of the amount of the fee occurred in open court on the day of the sentencing hearing; therefore, Walker did not have the adequate notice required by the statute and assessment of the fee was inappropriate. The assessment is reversed, also without prejudice to the State to tax the fee in accordance with Section 27.56(7), Florida Statutes (1983).

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


text:
    GREAT SOUTHWEST FIRE INSURANCE COMPANY, Appellant, v. Lavern J. DeWITT and Lynn DeWitt, his wife, Appellees.
    No. AW-485.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.

      Bob G. Freemon, Jr. of Butler & Bur-nette, Tampa, for appellant.
    Michael S. Smith of Smith & Smith, Perry, for appellees.
   BARFIELD, Judge.

The Great Southwest Fire Insurance Company appeals the denial of its inter-pleader action and the award of attorney’s fees to its insured. We affirm the denial of interpleader but reverse and remand the attorney’s fee award for recalculation of an appropriate amount.

The background of this factually and proeedurally complex litigation is not in dispute. In 1978, Ross B. Henderson and Bonnie Lou Henderson, his wife, purchased certain real property (a beach house) in Taylor County from third parties. On August 27, 1981, the Hendersons conveyed the property to Lee J. DeWitt and Lynn C. DeWitt, his wife. That same day, the De-Witts executed a mortgage to the Hender-sons securing a portion of the purchase price. The mortgage did not indicate the form of ownership taken by the Hender-sons.

On October 31, 1981, Ross Henderson died. In March of 1982, Mr. Henderson’s children filed a petition seeking, inter alia, to revoke Henderson’s will on grounds of undue influence, fraud, and lack of capacity-

Meanwhile, the DeWitts had obtained insurance on the beach house with Great Southwest. The dwelling was insured for $30,000 and its contents for $12,000. On June 28, 1982, the house and its contents were completely destroyed by fire. Although the mortgage was not indicated on the policy, the insurer learned of its existence while investigating the claim. On September 21, 1982, the company issued a check for $42,000 payable to “Lavern J. or Lynn C. DeWitt and the Estate of Ross Henderson or his assigns.” The personal representatives of Mr. Henderson’s estate refused, however, to endorse the draft. By letter of November 2, 1982, counsel for the DeWitts returned the check to the insurer and asked that another be issued payable to the DeWitts and Mrs. Henderson.

The insurer responded on November 17, 1982. It indicated that it could re-issue the check as requested only if the estate of Ross Henderson executed an affidavit waiving any interest in the proceeds and covenanting not to sue Great Southwest. On November 22, 1982, this demand was forwarded to an individual who was apparently counsel for the estate. On December 3, 1982, counsel for Great Southwest wrote to counsel for the DeWitts, reiterating its demands regarding reissuance of the draft.

On January 3, 1983, the DeWitts filed suit to recover the insurance proceeds. The company answered, counterclaimed, and cross-claimed in interpleader against the estate and the DeWitts and sought to deposit the funds in the registry of the court. In April, Great Southwest sought and obtained approval to add the children of Ross Henderson to its cross-claim in interpleader. The cross-claim was filed in May.

On June 10, Great Southwest was advised that Mrs. Henderson had executed a satisfaction of the mortgage. The $12,000 payment for contents coverage was made the following week, but the insurer continued to maintain that it was potentially liable to conflicting claims and refused to pay to the DeWitts the $30,000 due for loss of the structure. A final hearing in the matter was held on October 17, 1983. The trial court found that the mortgage was held as tenants by the entireties by the Hender-sons, and that Mr. Henderson’s interest in the mortgage thereby passed to Mrs. Henderson by right of survivorship. He concluded that the mortgage was therefore not subject to the claims of Henderson’s heirs. Accordingly, he denied Great Southwest’s interpleader claims, granted the insurance proceeds to the DeWitts, and awarded a $12,000 attorney’s fee to the DeWitts pursuant to Fla.Stat. § 627.428 (Supp.1982). Great Southwest then undertook this appeal.

We hold that the trial court incorrectly found that the mortgage was held as tenants by the entireties by the Hender-sons. A mortgage, under Florida law, is intangible personal property. Seaboard All-Florida Ry. v. Leavitt, 105 Fla. 600, 141 So. 886 (1932). Our Supreme Court has held that in matters involving personalty, in order to create a tenancy by the entirety, “not only must the form of the estate be consistent with entirety requirements, but the intention of the parties [to create the estate] must be proven.” First National Bank v. Hector Supply Co., 254 So.2d 777, 780 (Fla.1971). Assuming that intent to create a tenancy by the entireties could not be proven, the mortgage would have been held by the Hendersons as tenants in common, Fla.Stat. § 689.15 (1977), and rights to half of the mortgage proceeds would have entered Henderson’s estate. Under our view of the law, it is not difficult to see how the Henderson heirs’ challenge did indeed present Great Southwest with the threat of potentially conflicting claims. We conclude that, at the time it was filed, the insurer’s interpleader action was a valid one.

On the other hand, we believe that the posture of the litigation changed completely when Mrs. Henderson executed the satisfaction of the mortgage. It is well-settled that any one of joint mortgagees is entitled to receive payment of the debt and to discharge the debt. 55 Am. Jur.2d Mortgages § 409 (1971); 59 C.J.S. Mortgages § 446b. (1949). Thus, Mrs. Henderson’s satisfaction of the mortgage relieved the insurer of any obligation it might have had to persons claiming an interest in the mortgage and we find that Great Southwest improperly withheld payment of the proceeds past that point in time. Accordingly, we affirm the trial court’s denial of interpleader. Newkirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979).

As to the attorney’s fees, we believe that a correct result in this case can only be reached by remanding the matter to the trial court for a recalculation of the fee. Section 627.428 is in the nature of a penalty against an insurer who wrongfully refuses to pay a legitimate claim, and the statute must be strictly construed. Lumbermens Mutual Insurance Co. v. American Arbitration Assoc., 398 So.2d 469 (Fla. 4th DCA 1981). No attorney’s fees are awardable where the insurer recognizes its obligation to pay but seeks to interplead the funds because of actual or potentially conflicting claims thereto. Manufacturers Life Insurance Co. v. Cave, 295 So.2d 103 (Fla.1974). We conclude, therefore, that a partial fee should be awarded based on the efforts of insured’s counsel after the satisfaction of mortgage was obtained and presented to the insurer, but not before.

Finally, appellees seek attorney fees for this appeal pursuant to § 627.428. Inasmuch as both parties have obtained some relief in this court, we find that appellees are entitled to a portion of their appellate fees and instruct the trial court to take evidence and fashion an equitable award of appellate fees when it reconsiders the award for the proceedings below. The judgment is therefore AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this opinion.

JOANOS and WIGGINTON, JJ., concur.

      . The Hector Supply result was based, in part, on the differences between typical real and personal property transactions. Thus, real property transfers to husband and wife presumptively create tenancies by the entireties and are "matters of record which occur infrequently, ... formal transactions ...” 254 So.2d at 780. These are characteristics shared, of course, by many mortgages. Nevertheless, the Hector Supply opinion did not create an exception for mortgages in its realty/personalty scheme, and wc decline to do so here.