author: SCHOONOVER, Judge.

text:
    Charles ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-489.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Charles Anderson, has appealed from the judgments and sentences entered pursuant to jury verdicts finding him guilty of two counts of attempted manslaughter and two counts of robbery with a firearm.

We find no merit in appellant’s contention that he was improperly convicted and accordingly affirm the judgments entered by the trial court. However, since the written sentences entered in connection with the robbery charges vary from the court’s oral pronouncement, we must remand for correction of the written sentence. Gatti v. State, 324 So.2d 193 (Fla. 2d DCA 1975).

At the sentencing hearing, the court orally sentenced the appellant to a life sentence on each of the robbery charges, and because a firearm was involved, he was sentenced to serve a minimum term of imprisonment of three years on each of the charges. The sentences were to be served consecutively. The written sentences entered by the court impose the life sentences but do not refer to the mandatory three year sentence required by section 775.-087(2), Florida Statutes (1981).

We accordingly remand to the trial court for correction of the written sentences entered in connection with the two counts of robbery with a firearm. In doing so, the court should consider the case of Palmer v. State, 438 So.2d 1 (Fla.1983), wherein the supreme court held that three year mandatory minimum sentences cannot be consecutively imposed when the offenses involved arise out of the same criminal episode.

The judgments and sentences in connection with the attempted manslaughter charges are affirmed in all respects.

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


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Valentine BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-582.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of trafficking in marijuana and carrying a concealed firearm. He attacks only the latter conviction on this appeal.

In an undercover operation, a Clearwater detective obtained some marijuana for resale. Appellant met the detective at a warehouse for the purpose of purchasing a portion of the marijuana. Police, who had the warehouse under surveillance, testified that appellant arrived in a car driven by Cassandra Taylor. Appellant was seated on the passenger side of the front seat. Appellant went into the warehouse where he remained for approximately an hour and fifteen minutes. Taylor stayed outside with the car. She left the car on two occasions, once to go to some bushes near the warehouse and later to walk to the edge of the warehouse. No other persons approached the car. When appellant was arrested Taylor tried to drive away. The police stopped Taylor’s vehicle and found a gun lying on a towel on the floor of the passenger side. The gun was not visible from outside the car until the passenger door was opened.

Appellant concedes that under the rationale of Ensor v. State, 403 So.2d 349 (Fla.1981), there was a jury issue as to whether the firearm was concealed. He argues, however, that the evidence was insufficient to prove that the firearm was “on or about his person” as required by section 790.-01(2), Florida Statutes (1981).

A firearm is on or about one’s person if it is in close proximity to him within his easy reach. Sutton v. State, 327 So.2d 234 (Fla. 1st DCA), cert. denied, 334 So.2d 608 (Fla.1976). The evidence tending to prove that the gun was on or about appellant’s person was entirely circumstantial, resting primarily upon the fact that when appellant arrived he was seated on the passenger side of the car. A conviction based solely upon circumstantial evidence cannot be sustained unless every reasonable hypothesis of innocence is excluded. McArthur v. State, 351 So.2d 972 (Fla.1977). It is not enough that the facts create a strong probability of guilt. Owen v. State, 432 So.2d 579 (Fla. 2d DCA 1983). Here, there was at least a reasonable hypothesis that Cassandra Taylor carried the gun and placed it on the floor of the passenger side of the automobile after appellant went into the warehouse. Hence, the proof by circumstantial evidence failed.

We affirm the judgment and sentence for trafficking in marijuana but reverse the conviction for carrying a concealed firearm.

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


author: LEHAN, Judge.

text:
    Dayle L. DISHAROON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1044.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.
    Dennis J. Plews, Bradenton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Petitioner appeals the trial court’s final order denying his petition for expunction of his records under section 943.058, Florida Statutes (1981). Although the order assigns petitioner’s “prior conviction” as the reason for the denial, we find no such conviction in the record. Because the order appears to have been entered under a misapprehension, we reverse it and remand to the trial court for reconsideration of the petition.

REVERSED and REMANDED.

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


author: PER CURIAM.

text:
    Patricia DONAHUE and Michael Donahue, etc., et al., Appellants, v. SUNSHINE CITY MANAGEMENT ASSOCIATION, etc., et al., Appellees.
    No. 82-1766.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.

      Chidnese & Becker, Fort Lauderdale, and William G. Edwards of Steven R. Berger, P.A., Miami, for appellant.
    Michael C. Mattson of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   PER CURIAM.

We find that the movant has failed to negate the existence of genuine issues of material fact and, consequently, the summary final judgment entered in this cause is reversed. See McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

LETTS and HURLEY, JJ., and VO-CEELE, L.B., Associate Judge, concur.


author: BERANEK, Judge.

text:
    William A. SCHWARTZ, Appellant, v. Bobbie Lee SCHWARTZ, Appellee.
    No. 82-2638.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 17, 1984.
    Monroe Gelb of Gelb & Spatz, Miami, for appellant.
    Jeffrey P. Wasserman of Litman, Mu-chnick & Wasserman, Hollywood, and Nancy Little Hoffmann of Law Offices of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellee.
   BERANEK, Judge.

This appeal comes to us from a final judgment of dissolution ending a five-year marriage between the parties. This is the third marriage for the husband who is 82 years old, and the fourth marriage for the wife who is 68 years old. The trial court awarded the wife rehabilitative alimony in the nature of exclusive possession of the marital home during the remainder of her life or until she remarried. The court denied the husband any special equity in the home despite the fact that the entire down payment came from his funds totally unconnected to the marriage.

We reverse. An award of rehabilitative alimony should be limited in amount and duration. Here, we have a lifetime award which we find unwarranted under the circumstances of this case. Some award of rehabilitative alimony may well be proper, and we leave this to the court’s discretion on remand.

In addition, the trial court erred in denying the husband a special equity in the wife’s share of the marital home. Since the husband furnished some but not all of the consideration for the marital home, he should be given an enhanced interest in the property. See Landay v. Landay, 429 So.2d 1197 (Fla.1983). In that case, the supreme court established the correct formula for determining such a percentage interest: in addition to the contributing spouse’s automatic one-half share, he or she acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.

We remand this matter to the trial court for reconsideration of the entire alimony question and for a determination of the husband’s special equity according to Landay v. Landay, supra.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Hoyt Vernon HARRISON, a/k/a James Harrison, Sr., and Patricia Wolack, Respondents.
    No. 83-88.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for petitioner.
    J. David Bogenschutz of Varón & Stahl, P.A., Hollywood, for respondent Harrison.
    Robert M. Leen of Leen and Schneider, Hollywood, for respondent Patricia Wolack.
   PER CURIAM.

Based upon the authority of Novo v. Scott, 438 So.2d 477 (Fla. 3d DCA, 1983) we grant the state’s petition for certiorari and quash the trial court’s order which held that section 914.04, Florida Statutes (Supp.1982) is unconstitutional. We adopt the rationale of our sister court and “hold that section 914.04 is constitutional and affords a witness derivative-use immunity.” Novo v. Scott, supra.

HERSEY, HURLEY and WALDEN, JJ., concur.


text:
    Sandy Howard VINSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-436, 83-437.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer and Bruce M. Lee, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978).

LETTS, BERANEK and HERSEY, JJ., concur.


author: VOCELLE, L.B., Associate Judge.

text:
    In the Interest of W.R., a child.
    No. 83-621.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   VOCELLE, L.B., Associate Judge.

Appellant requests this court to rescind and remand this case to the trial judge with instructions to the trial court to correct the order of commitment entered on March 10, 1983. The State agrees.

Accordingly, this case is remanded to the trial court to correct the written order of commitment entered March 10, 1983. The trial court is instructed to (1) remove the aggravated battery from the order of commitment; and (2) further correct the order of commitment to show the maximum sentence allowable by law is one year for the battery (Sections 784.03 and 775.082(4)(a), Florida Statutes (1981)), and sixty days for the assault (Sections 784.011 and 775.-082(4)(b), Florida Statutes (1981)).

This court notes it is perplexing that the trial court was not given the opportunity to correct this matter. See Fla.R.Juv.P. 8.240 (1983).

LETTS and HURLEY, JJ., concur.


author: PER curiam;.

text:
    The OHIO CASUALTY INSURANCE COMPANY and William B. Frank, and Deborah Frank d/b/a Bougainvilla Court, a partnership, Appellants, v. AVALON CONSTRUCTION, INC., Appellee.
    No. 83-627.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellants.
    Edward D. Popkin of Popkin & Shurpin, Fort Lauderdale, for appellee.
   PER curiam;.

Here, as conceded by the parties, the trial court erred in awarding attorney fees without taking testimony or conducting a hearing. We reverse the award of attorney fees and remand with instructions to conduct a hearing and accept testimony as to the amount of a reasonable fee.

Otherwise the final judgment is affirmed.

Affirmed in part; reversed in part; and remanded for further proceedings.

GLICKSTEIN and WALDEN, JJ., and DAUKSCH, JAMES C., Associate Judge, concur.


text:
    AMERICAN REALTY & MARKETING, INC., a Florida corporation, Appellant, v. EQUITY PROPERTIES INTERNATIONAL CORP., a Florida corporation, Appellee.
    No. 83-1292.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    William E. Stockman of Sullivan, Bailey, Gleason & Wich, Pompano Beach, for appellant.
    C. Edward McGee, Jr., and John P. She-vock, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm upon authority of Consolidated Aluminum Corp. v. Weinroth, 422 So.2d 330 (Fla. 5th DCA 1982). Pet. for rev. den. 430 So.2d 450 (Fla.1983).

AFFIRMED.

GLICKSTEIN, HERSEY and WALDEN, JJ., concur.


text:
    William Louis RUSSELL, Petitioner, v. Honorable Barry J. STONE, Circuit Court Judge Seventeenth Judicial Circuit, Respondent.
    No. 83-2221.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Alan H. Schreiber, Public Defender and Denise E. Huard, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. See United States v. Serrano, 607 F.2d 1145 (5th Cir.1979).

BERANEK, HURLEY and DELL, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Arthur BENEVENTO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1148.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, C.J., and DAUKSCH, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

We are affirming a conviction for escape (§ 944.40, Fla.Stat. (1981)) from a county jail where the only evidence that the defendant was in “lawful custody” (§ 944.-02(4), Fla.Stat. (1981)) was that at the time he escaped he had been arrested and confined as a prisoner in the county jail in the custody of the county sheriff. The arresting officer only identified Benevento as the man he arrested and placed in the county jail in the custody of the county sheriff but there was no evidence that the arrest was made pursuant to a valid arrest warrant or, under circumstances when an arrest by an officer without warrant is lawful (§ 901.15, Fla.Stat. (1981)). Both parties to this appeal think this court’s decision in Williams v. State, 416 So.2d 493 (Fla. 5th DCA 1982), is in point and I agree. The State notes that the interpretation of Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), made by the dissent in Williams and in Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), was approved by the Supreme Court of Florida in State v. Hicks, 421 So.2d 510 (Fla.1982). As stated in the dissent in Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982), this court should not hedge but should be true to a bad precedent or recede from it.


author: DAUKSCH, Judge.

text:
    Elbert B. SIPP, Appellant, v. STATE of Florida, Appellee.
    No. 82-1155.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.

      James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, and Larry B. Henderson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for sale of a substance in lieu of a controlled substance. The statute is found under Chapter 817 “Fraudulent Practices” and declares that “it is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance ... and then sell to such person any other substance in lieu of such controlled substance.”

The facts of this case are that appellant offered to sell marijuana to a person who, unknown to him, was a policeman. The parties agreed upon a price, the appellant showed the policeman what he purported to be marijuana and the policeman arrested him for sale of marijuana. Appellant then told the policeman it was not real marijuana. After testing, the substance was found not to be marijuana and appellant was charged, convicted and sentenced to prison for selling bogus marijuana.

The question on appeal is whether the facts support the conviction. It is our opinion they do not and reverse the conviction.

In order for us to reach our conclusion we have compared the crime charged with another crime, that of sale of a controlled substance. The latter statute is found in Section 893.13, Florida Statutes (1981) which is under the Drug Abuse Prevention and Control Act. In that Act it is declared unlawful for one “to sell ... or deliver, or possess with intent to sell, ... or deliver, a controlled substance.” There is a marked difference between these two statutes. When one is charged under the drug abuse statute it is sufficient for a conviction to prove that a person merely possessed the substance with intent to sell, whereas under the fraudulent practices statute there is a requirement that it be proved that a sale was completed. That is, it is not enough to prove that a person possessed a bogus controlled substance with intent to sell it as a controlled substance. See State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983). Perhaps this can be demonstrated by saying no one should be convicted of a crime for the mere intent to commit that crime. It is evident this appellant intended to commit the crime, he even attempted to do so, but it is equally evident the policeman arrested him before the sale occurred and thus stopped the commission of the crime. This statute requires the sale — an attempt to do so is not encompassed within it, unlike the theft statute, for instance. Of course, a jury could have found him guilty of the attempt but it did not do so because this case was decided below on motion to dismiss.

In its brief the state points to the standard jury instruction in drug cases which defines sale: “Sell means to transfer or deliver something to another person in exchange for money or something of value or a promise of money, or something of value.” It is urged by' the state that the officer’s promise of money was sufficient to complete the sale and it does not matter that neither the product nor the money changed hands. We cannot agree because we read this particular statute to require more than a seller’s possession with intent to sell and a buyer’s promise to pay.

For good reason the statute in this case is not a drug abuse prevention and control statute but is a fraudulent practices statute. Before enactment of this statute there was no specific crime proscribing this conduct so the larceny (now known as theft) statute was employed to punish those who induced undercover agents to part with money when it was thought drug cases were being made but drug cases were not being made.

It is easier and cleaner to convict someone of the specific bad conduct than it is to convict under a general statutory proscription. It is also fairer to the public to know exactly what conduct is unlawful. In fact, it is probably true that many law abiding people would think it alright for one to sell lawn grass to a “druggie” in the guise of marijuana. The rationale being that “it serves them right!” Of course no law abi-der would apply the same rule to policemen who are endeavoring to stop unlawful drug sales. To bilk them out of money should be, and by this statute is, unlawful but to violate the statute the sale must have been truly completed — delivery (actual or constructive) of the substance the police were led to believe was controlled but turned out not to be, and a payment for it.

The court erred in denying the motion to dismiss because the facts do not support the charge. We make no decision as to the viability of any other prosecution.

REVERSED and REMANDED.

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


text:
    Ira Lee POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1352.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.

      James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and • Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for burglary and grand theft which resulted from an order revoking probation. That is, appellant was not convicted but was put on probation and after he violated his probation the court adjudicated him guilty and sentenced him to confinement. We find no error in the procedure by which he was found guilty of the probation violation.

Appellant alleges the court erred in adjudicating and sentencing him for grand theft because he never was found guilty, by plea or trial, of that count. If he is correct about the lack of a plea or a verdict then he is right about the adjudication and sentencing errors. We have no record which substantiates or disputes his claim, but the trial court does. Thus we remand this cause for thirty days to have the trial court review the matter and determine if a plea or verdict substantiate the adjudication and sentence. If so, then to send us the record so indicating. If not, then to correct the matter.

It is so ordered.

COBB and SHARP, JJ., concur.


text:
    STATE of Florida, Appellant, v. David WEDDLE, Appellee.
    No. 82-1403.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellee.
   PER CURIAM.

The order of October 1, 1982, granting Defendant’s Motion to Dismiss Affidavit Alleging Violation of Probation, Motion to Set Aside Warrant Alleging Violation of Probation, Motion to Dismiss Information, Motion to Set Aside Plea, and Motion to Vacate Judgment and Sentence, is reversed on the authority of State v. Hicks, 421 So.2d 510 (Fla.1982), and this cause is remanded for further proceedings.

REVERSED and REMANDED.

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


author: ORFINGER, Chief Judge.

text:
    GIFFEN ROOFING COMPANY, INC., and Giffen Industries of Orlando, Inc., Appellants, v. DHS DEVELOPERS, INC., and Tuttle/White Constructors, Inc., et al., Appellees.
    No. 83-152.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Ronnie H. Walker, of Walker, Buckmas-ter, Miller & Ketcham, P.A., Orlando, for appellants.
    Manuel Socias, of Dempsey & Slaughter, P.A., Orlando, for appellees.
   ORFINGER, Chief Judge.

The narrow issue before us on this appeal is whether a liability insurance company breaches its duty to defend its insured when it provides the defense under a reservation of rights. The trial court entered judgment on the pleadings in favor of the insurer and we affirm.

Giffen Roofing Company, Inc. was a subcontractor on a construction project and was joined as a defendant in a suit by the owner against the prime contractor claiming damages because of alleged construction defects. Several insurers were joined who allegedly insured Giffen, including ap-pellees Fidelity and Casualty Company of New York and Continental Insurance Company. A third insurer settled the claim against Giffen and Giffen cross-claims against Fidelity and Continental for attorney’s fees expended because Giffen hired independent counsel. The cross-claim alleged, in pertinent .part:

14. In disregard of the obligations imposed upon them under the terms of the insurance contracts, the insurance companies named herein failed and refused to supply a complete defense of the law suit brought against GIFFEN and have chosen instead to defend under reservations of rights seeking to deny coverage to their insured, GIFFEN.
15. GIFFEN has been damaged by the herein named insurance companies failures and refusals to provide a complete defense against the law suit.
16. The defendant insurance companies breach and failure to provide a complete defense to GIFFEN, as aforementioned, necessitated GIFFEN to employ the services of an attorney to defend said suit, agreed to pay him a reasonable attorneys fee, and to incur Court costs in said suit.

Giffen contends that the insurers were obligated to either: 1) provide it with a “complete” defense (which Giffen says is an “unqualified” defense); or 2) pay the attorney fees for the attorney hired by Giffen.

Giffen’s claim must be reviewed the light of the pleadings which frame the issues. Des Rocher and Watkins Towing Company v. Third National Bank of Miami, 106 Fla. 466, 143 So. 768 (1932). The pleadings here allege that appellees provided a defense under a reservation of rights. There is no allegation that appellees refused to provide a defense, or that notice of the reservation was given in an untimely fashion so as to result in prejudice to the insured. It is well settled that an insurer may provide a defense to its insured while reserving the right to later challenge coverage, if timely notice of such reservation is given to the insured. Centennial Insurance Company v. Tom Gustafson Industries, Inc., 401 So.2d 1143 (Fla. 4th DCA 1981); Midland Insurance Company v. Watson, 188 So.2d 403 (Fla.3d DCA 1966).

Neither is there an allegation that Gif fen rejected the proffered defense and set about defending the action with its own counsel. Thus Taylor v. Safeco Insurance Company, 361 So.2d 743 (Fla. 1st DCA 1978) and Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975) relied on by Giffen are inapposite. The cross-claim fails to allege any breach of duty by appellees, and the court was correct in entering a judgment on the pleadings, which judgment is

AFFIRMED.

COWART, J., and WATSON, Associate Judge, concur.


text:
    John Cliff ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-439.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Ronald W. Black, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Defendant appeals from a judgment of conviction for grand theft. The record forwarded to this court does not contain a transcript of the trial proceedings. Defendant is represented by private counsel. The issues raised on appeal require a review of the trial transcript, so on August 12, 1983, we granted the state’s motion, agreed to by defendant, that defendant be required to supplement the record by the addition of the trial transcript, and we ordered the record supplemented within thirty (30) days. On October 25, 1983, in response to the state’s motion to dismiss, we ordered defendant to show cause within ten (10) days why the appeal should not be dismissed for failure to comply with the earlier order of this court.

No response has been filed. Instead, counsel for defendant moves the court for leave to withdraw, citing lack of client cooperation as a ground for the request. The motion appears well taken.

We cannot review issues on appeal which raise alleged trial errors without a transcript of the trial proceedings. Apparently, defendant here declines to furnish us with such transcript notwithstanding the opportunity afforded him to supply it. Under the circumstances, we are governed by the principle of law which imparts a presumption of correctness to the trial court’s judgment. For a similar result in a civil appeal, see Mikes v. Mikes, 440 So.2d 616 (Fla. 4th DCA 1983).

The motion of Ronald W. Black, Esquire for leave to withdraw is granted, and the judgment appealed from is

AFFIRMED

DAUKSCH and COWART, JJ., concur.


text:
    Luis Alfonso JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-689.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

DISMISSED on the authority of Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

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


text:
    Louis Charles SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-920.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

COBB, SHARP and COWART, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    George E. PARHAM, Appellant, v. EAST BAY RACEWAY and K & K Insurance Agency, Appellees.
    No. 82-1857.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Donald E. McLawhorn, Tampa, for appellant.
    Jonathan L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
   HOBSON, Acting Chief Judge.

George Parham, plaintiff below in a personal injury action, appeals a final summary judgment order rendered in favor of East Bay Raceway (“Raceway”) and its insurer, K & K Insurance Agéncy (“K & K”), defendants below. We reverse and remand because genuine issues of material fact exist. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Parham alleged in a complaint that he sustained injuries upon being struck by a racecar at the Raceway while he was near the pit area as a business invitee. He asserted therein that the proximate cause of his injuries was negligence on the part of the Raceway, and demanded a trial by jury. The record on appeal does not contain the answer and affirmative defense(s) of the Raceway and K & K. However, it can be implied that the Raceway and K & K raised as an affirmative defense that, prior to being injured, Parham signed a standard form which released the Raceway from all alleged liability. (The record also does not contain any reply thereto by Par-ham.)

The Raceway and K & K thereafter submitted a motion for summary judgment. The court below granted the motion after examining the pleadings, depositions, affidavits and documents and conducting a hearing. It found in its final summary judgment order that, before entering the area where the accident occurred, Parham signed his name on a release agreement after having been given a full and complete opportunity to review the agreement; that the accident happened in a restricted area accessible only upon the payment of a fee and the execution of the agreement; and that the language of the agreement was both clear and unambiguous.

Reviewing the record in a light most favorable to Parham, the nonmoving party below, as we must, the following factual scenario may be drawn:

Parham was admitted to the grandstand area of the Raceway upon payment of the regular admission price. After remaining there for a short while, he proceeded to a ticket shack located by a gate leading to the Raceway’s restricted areas, which include the pit area.

Upon arriving at the shack, Parham, who had never been inside the grounds of the Raceway before, and who thus was unfamiliar with the procedures to gain admission to the restricted areas, advised the Raceway employee sitting inside the shack that he wished to enter the pit area. The employee informed him that in order to enter he needed to pay a dollar for “insurance,” sign his name on a form for “insurance,” and then get his hand stamped.

Parham thereupon paid a dollar to the employee, who then presented him with a form attached to a clipboard. The upper half of this form consisted of language releasing the Raceway from all liability in the event of an injury to a signatory in any restricted area. The lower half contained signature lines, some of which had been filled in. The only portion of this form visible to Parham at the time was the lower half; the upper half was covered by a form of the same size which had been folded in half. (It was learned after the accident that this folded form was an identical release form which had already been filled with signatures.) Upon being shown by the employee where to sign, Parham affixed his signature on a signature line and had his hand stamped.

Parham then walked past the.shack to another gate bordering the oval racetrack. This gate was connected on both sides by a wall surrounding the racetrack. While waiting for a race to finish so that he could enter the gate to get into the pit area located inside the racetrack, he was struck and injured by a racecar which crashed through the gate.

Parham contends on appeal that genuine issues of material fact exist for the trier of fact as to whether he signed the release form without a misrepresentation and/or concealment on the part of the Raceway employee which dissuaded or prevented him from reading the form before signing it. The Raceway and K & K respond that the issue at hand is not one of fact, as Parham claims. They believe that the issue is instead one of law: whether one may avoid a contract he has signed on the ground that he did not read it before signing it, despite having been allowed an opportunity to read it before signing it.

We disagree with the suggestion of the Raceway and K & K that the issue here is purely one of law. To be sure, it is generally the duty of a party to learn and understand the contents of a proposed contract before he signs it. Pepple v. Rogers, 104 Fla. 462, 140 So. 205, 208 (1932). It thus follows that a party to a written contract cannot defend against its enforcement on the sole ground that he signed it without reading it. All Florida Surety Co. v. Coker, 88 So.2d 508, 510 (Fla.1956). However, the mere existence of an opportunity for a party to know the contents of a proposed contract is not sufficient by itself to infer constructive notice where the party justifiably relies to his detriment upon a misrepresentation by the other party about the nature of the proposed contract. Morris v. Ingraffia, 154 Fla. 432, 18 So.2d 1, 3 (1944). As our state supreme court remarked in Peppel:

[I]f the opposite party has induced one by a trickery, fraud, or any kind of artifice, not to read the contract, with the view of obtaining from him a paper which he could not otherwise have obtained, the right to prove these circumstances, and thereby establish the fact that he was signing an entirely different paper, may be shown for the purpose of relieving such party from the obligation thus fraudulently obtained.

140 So. at 208. Similarly, it commented in All Florida Surety Co. v. Coker, quoting from Morgan v. Mengel Co., 195 Ky. 545, 242 S.W. 860 (1922), that a party to a written contract can defend against its enforcement on the ground that he signed it without reading it if

he aver [sic] facts showing circumstances which prevented his reading the paper, or was induced by the statements of the other parties to desist from reading it.

88 So.2d at 510. Likewise, it stated in Allied Van Lines, Inc., v. Bratton, 351 So.2d 344, 347-48 (Fla.1977), that a contract is not binding if

one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract ....

It is settled, of course, that the question of whether fraud existed in the obtaining of an instrument is one of fact to be resolved by the jury. Casey v. Welch, 50 So.2d 124 (Fla.1951); Winter Park Telephone Co. v. Strong, 130 Fla. 755, 179 So. 289, 296 (1938).

In the case at bar, a genuine issue of material fact exists for the jury as to whether the Raceway employee at the ticket shack leading to the restricted areas misrepresented to Parham that the contents of the release agreement concerned the matter of “insurance” and/or concealed the contents of the agreement from him. If the jury finds that the employee committed either or both of these acts, a genuine issue of material fact will remain as to whether one or both of these actions dissuaded or prevented Parham from exercising his opportunity to read the release form before signing it. If the jury finds that Parham was dissuaded or prevented from doing so, the agreement is voidable. The negligence issue will then need to be addressed and resolved.

Accordingly, we reverse the final summary judgment order and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

SCHEB and DANAHY, JJ., concur.


author: OTT, Chief Judge.

text:
    G.L.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-466.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.

      Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Appellant, a juvenile, appeals an order finding him in indirect criminal contempt of a previous order adjudicating him dependent. We reverse.

Appellant appeared before the trial judge with his mother. The judge advised appellant of his right to be represented by counsel. Appellant indicated that he desired the services of an attorney but had no funds. The judge determined that appellant’s only asset was an electric guitar and amplifier. Appellant was declared partially insolvent and the public defender was appointed to represent him. In return, appellant was ordered to deliver his guitar and amplifier to the judge’s secretary’s office within ten days as partial payment of the public defender’s fee. The court also appointed the public defender to consult with appellant concerning appeal of a commitment proceeding held earlier that day.

A brief recess was taken, after which the following exchange occurred:

THE JUVENILE: Judge, I don’t want a lawyer.
THE COURT: On the record, please. Gary is now indicating, you do not want a lawyer?
THE JUVENILE: What, sir?
THE COURT: You are now indicating you do not want a lawyer in connection with that proceeding this morning for appeal purposes?
THE JUVENILE: Yes, sir.
THE COURT: All right. What we will do is, we will use this in this proceeding.
We are going to pass this down to you, Gary, and have you sign it.
MS. HELFRICH [Juvenile Counsellor]: Your Honor, Gary indicated he doesn’t want to lose his guitar. This is indicated — what he didn’t want a lawyer on, because he would have to lose his guitar—
THE COURT: That is on this proceeding?
THE JUVENILE: Is this for a Public Defender?
THE COURT: Are you indicating also that you do not want to have a lawyer on the contempt proceeding?
THE JUVENILE: Yes, sir.
THE COURT: Do you have a waiver of counsel form?
THE CLERK: Yes.
THE COURT: Let’s pass that down to him and let him sign that. This is a form which says you are waiving your right to counsel on this order to show cause (R 32-33).

Appellant executed the waiver of counsel form without further explanation.

Appellant’s mother was called to testify concerning appellant’s failure to obey certain conditions of the dependency order. Following her testimony, the court advised appellant:

THE COURT: Now, at this time, Gary, you have the right to testify in your own behalf or to call witnesses to testify. Do you wish to testify?
THE JUVENILE: Yes, sir. There are some things I would like to say, if that is what it means.
THE COURT: Assume the seat at the end of the table. Raise your right hand. (R 41).

Appellant then refuted his mother’s testimony.

Appellant was held in indirect criminal contempt and sentenced to five months in juvenile detention.

The first point raised is whether the court made a sufficient inquiry to determine whether appellant knowingly and intelligently waived his right to counsel.

Appellant, charged with criminal contempt and facing the possibility of incarceration, was entitled to be represented by counsel. Fla.R.Juv.P. 8.280(d); R.M.P. v. Jones, 419 So.2d 618 (Fla.1982). Section 27.52(2)(d), Florida Statutes (1981), provides in pertinent part:

When the public defender, a special assistant public defender appointed pursuant to s. 27.53(2), or appointed private legal counsel is appointed to represent a minor in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian of the minor shall be liable for the costs of such representation in an amount not to exceed $1,250. Liability for the costs of such representation may be imposed in the form of a lien against the property of the parents or the legal guardian of the minor, which lien shall be enforceable as provided in s. 27.56 or s. 27.561.

The lower court made no inquiry into appellant’s mother’s willingness or ability to furnish him with legal counsel. If she could not afford counsel, the public defender should have been appointed and a lien placed against her property. The lower court had no authority to order appellant to turn over his guitar.

In R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981), the fifth district noted,

“It is extremely doubtful that any child of limited experience can possibly comprehend the importance of counsel. Therefore, a juvenile judge must make certain that the child or his parents understand not only the child’s right to counsel, but also that any waiver is intelligently and validly made.”

395 So.2d at 292. In the instant case, appellant waived his right to counsel only to avoid the loss of his guitar. When appellant announced his intention to proceed without counsel, the lower court was obligated to (1) inform appellant of the benefits he would relinquish and the dangers and disadvantages of representing himself, (2) determine whether appellant’s choice was made voluntarily and intelligently, and (3) determine whether any unusual circumstances existed which would preclude appellant from exercising his right to represent himself. Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983). This requirement was not met.

Appellant’s remaining point on appeal is whether the lower court erred in asking appellant if he wished to testify without informing him of his fifth amendment privilege against self-incrimination.

Indirect criminal contempt proceedings against a juvenile which may lead to commitment in a state facility must be regarded as “criminal” for the purposes of the privilege against self-incrimination. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (privilege against self-incrimination obtains in juvenile delinquency proceedings); Aaron v. State, 284 So.2d 673 (Fla.1973) (criminal contempt proceedings effectively criminal in nature and persons accused entitled to basic constitutional rights). This privilege may be waived, but any such waiver must be a knowledgeable and intelligent choice. R.V.P. v. State.

The case before us is strikingly similar to R. V.P. where the juvenile testified in response to the judge’s invitation to do so without advising the juvenile of his right not to do so. We agree with the holding in R. V.P. The fact that appellant voluntarily took the stand is clearly not an effective waiver.

For the reasons set forth herein, this case is REVERSED and REMANDED for a new proceeding.

SCHEB and LEHAN, JJ., concur.


text:
    John Willis INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-595.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

John Willis Ingram appeals an order entered after a jury trial which adjudicated him guilty of robbery in violation of section 812.13(1), Florida Statutes (1981), sentenced him to a fifteen-year term of imprisonment, and assessed him with a $1000 fine, a lien for the services of the public defender, and court costs of $81.

Ingram’s initial argument on appeal is that the trial court erred in denying his motions for a mistrial and a new trial due to the prosecutor’s purported reference during his closing argument to Ingram’s failure to testify at trial. A review of the record shows that this point is devoid of merit.

Ingram’s second contention concerns the assessment of the fine, lien, and court costs. The trial court erred in imposing the court costs of $81 inasmuch as he was found to be indigent prior to trial. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983) (question certified). Hence, these court costs must be stricken. The court also erred in ordering Ingram to pay the lien and fine as conditions of parole. Ferrell v. State, 437 So.2d 782 (Fla.2d DCA 1983). The fine and lien should be paid, but not as conditions of parole. Id. The Parole and Probation Commission, not the courts, has the exclusive authority to establish conditions of parole. Id.

Accordingly, we affirm the conviction and sentence. However, we remand with instructions to strike the court costs and provide that the lien, fine, and surcharge are to be paid, but not as conditions of parole.

AFFIRMED and REMANDED with directions.

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

      . We note that Ingram must also pay a 5% surcharge on the $1000 fine. See §§ 775.0835 and 960.25, Fla.Stat. (1981).


author: DANAHY, Judge.

text:
    George S. BRUNNER, et al., Appellants, v. PUGH SEPTIC TANK, INC., Appellee.
    No. 83-860.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.

      J. David Langford, Avon Park, for appellants.
    No appearance for appellee.
   DANAHY, Judge.

Appellants bring this appeal from a non-final order directing appellants and appel-lee to select a third arbitrator for the purpose of continuing arbitration to set a rate to be charged by appellee to the residents of Brunner’s Mobile Estates for sewer service.

Since this litigation started, the Public Service Commission acquired jurisdiction over water and sewer utilities in Highlands County. Accordingly, the only rate matter subject to the jurisdiction of the trial judge at this point are funds which were paid into escrow by appellee pursuant to an agreement of the partiés in the course of the litigation. Therefore, we modify the order appealed from to restrict its application to those funds so held in escrow.

As modified, the order is AFFIRMED.

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


text:
    Virgil K. KING, Appellant, v. STATE of Florida, Appellee.
    No. 83-1018.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Virgil King appeals the order revoking his probation and the judgment and sentence subsequently imposed.

An Anders brief has been filed by King’s counsel; and, although given notice of his right to file a supplemental brief, King has chosen not to do so.

While we find no substantive merit in this appeal, we note that the lower court erred in imposing court costs against King, who earlier had been adjudged insolvent. Accordingly, we strike the $13 court costs assessed against appellant but affirm the judgment and sentence as modified. See Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).

HOBSON, A.C.J., and RYDER and DAN-AHY, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: RYDER, Judge.

text:
    Blaine EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1187.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Blaine Everett appeals from the trial court’s acceptance of his nolo contendere plea and the sentences imposed thereafter. We affirm.

During October and December 1982, four informations were filed against Everett and others. The informations charged: attempted burglary; burglary of a structure and grand theft; burglary of a dwelling and grand theft; burglary of a structure and grand theft. Everett pleaded guilty to attempted burglary and nolo contendere to the other charges. The pleas were entered pursuant to an agreement which provided that Everett would receive a maximum sentence of three years incarceration or no more than three years imprisonment on each charge, running concurrently one with the other.

Everett’s counsel stipulated to a prima facie case on the nolo contendere pleas. In addition, the prosecutor recited a factual basis for all of the charges. After inquiring of Everett, the trial court determined that the pleas were intelligently and voluntarily entered. The court adjudicated Everett guilty of all charges. We find no error in the acceptance of the pleas.

The trial court entered various sentences of imprisonment and probation, the latter including conditions of restitution. The court stated that Everett had a period of ten days in which to contest the announced amounts of restitution.

From the record supplied on appeal, it would appear that the sentences imposed conflict with the plea agreement. The sentences appear to exceed the sentence cap to which the parties agreed, and there does not appear to have been any mention of restitution in the agreement. It is apparent, however, that no objection was made to the trial court by Everett or his counsel relating to the sentences ordered.

Objections to sentencing are to be first raised before the trial court. As Everett made no objection below, nor moved to withdraw the pleas, he cannot assert error for the first time in this appeal.

The judgment and sentences are therefore affirmed without prejudice to the filing of an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850. McIntyre v. State, 427 So.2d 1108 (Fla. 3d DCA 1983); Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982); Medina v. State, 411 So.2d 323 (Fla. 5th DCA 1982); Fuller v. State, 406 So.2d 1212 (Fla.3d DCA 1981). See Castor v. State, 365 So.2d 701 (Fla.1978).

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Ralph Edwin HORTON, Appellee.
    No. 83-1202.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    John R. Haggitt, Clearwater, for appel-lee.
   OTT, Chief Judge.

Ralph Edwin Horton was charged with false imprisonment. The trial court granted his motion to dismiss and the state appeals. We reverse.

Defendant’s motion to dismiss, filed under Florida Rule of Criminal Procedure 3.190(c)(4), contained the following allegations:

1) The material facts of this case are undisputed and are as follows:
a) The “victim”, an employee of U.P.S., made a delivery to the Defendant’s motel sometime between 11:00 a.m. and 11:30 a.m. on February 28, 1983.
b) The Defendant did not know what was in the boxes delivered and asked the driver if he, the Defendant, could open a box to see what it was before he paid the $348.60 for the goods.
c) The driver advised him he could not open the box to see what it was and he could either pay or refuse delivery at which time the boxes would be removed.
■ d) The Defendant, according to the driver, advised the driver that this was unacceptable and he was going to open a box and approached the box with a letter opener in hand. The driver moved toward the main exit but the Defendant reached the door first and locked it with a key that was on his belt. He told the driver he would stay until the Defendant was allowed to open the box. At that time, the driver placed the box on the floor, sat on it and waited.
e) The lobby of the motel was all glass and fully visible to the street and sidewalk outside.
f) There was another exit from the motel lobby into the Defendant’s living quarters which remained open and unlocked at all times the driver was present. The Defendant left the room through this exit on at least one occasion and tenants of the motel entered through this door to pick up their mail. The driver made no attempt to leave by this exit.
g) The Defendant reached his wife by telephone and she confirmed that she was expecting a delivery. The Defendant then paid the driver and unlocked the front door, the driver then got two other boxes out of his vehicle, brought them in the motel and then left.
h) The driver stated the door was locked for approximately 25 minutes.
i) At no time did Defendant touch or make any threatening gestures or remarks to the driver. He did state, according to the driver, during a phone call that he had a prisoner.

A motion to dismiss under rule 3.190(c)(4) should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. State v. Smith, 348 So.2d 637, 638 (Fla. 2d DCA 1977); State v. Swoveland, 413 So.2d 166 (Fla. 2d DCA 1982).

Section 787.02(l)(a), Florida Statutes (1981), defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in section 787.01 [kidnapping].”

Upon review of the motion, we believe fact questions exist as to whether a restraint or confinement occurred and, if so, whether such restraint or confinement was accomplished by threat. Resolving these disputes in the light most favorable to the state, as must be done on a motion to dismiss, we find the establishment of a prima facie case of false imprisonment. Accordingly, we hold that the trial court erred in granting defendant’s motion to dismiss.

In light of our holding, we need not consider the timeliness or adequacy of the state’s traverse.

The trial court’s grant of defendant’s motion to dismiss is REVERSED, the information is REINSTATED, and the case is REMANDED for further proceedings.

SCHEB and DANAHY, JJ., concur.

      . In Brunelle v. State, 360 So.2d 70 (Fla.1978), the supreme court construed this statute as being written in the disjunctive, with the adverbs "forcibly," "threat,” and "secretly” all being intended to modify the verbs "confining," "imprisoning,” and "restraining.” Thus, an unlawful restraint may be accomplished by threat alone or force alone or can be secretly accomplished. See Jane v. State, 362 So.2d 1005, 1006 (Fla. 4th DCA 1978).

      . Florida Rule of Criminal Procedure 3.190(d) says that factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the state in its traverse. Paragraph 1 i of the motion to dismiss contains a conclusory allegation regarding the lack of threatening gestures or remarks. We do not feel bound to accept this conclusory allegation, as the depiction of the event contained in paragraphs 1 a-d provides a basis for finding that a threat was involved.


text:
    Artis Lee BENTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1223 to 83-1225.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

In January 1982, Artis Lee Benton was charged with uttering a forged instrument and grand theft. This is appeal no. 83-1223. In February 1982, Benton was charged with another grand theft. That is appeal no. 83-1224. Benton pleaded guilty in both cases. In case no. 83-1223, he was placed on probation for two concurrent five-year terms. In case no. 83-1224, Benton was placed on probation for a term of five years consecutive to the terms in no. 83-1223.

Affidavits and warrants were filed on November 5,1982, in case nos. 83-1223 and 83-1224, alleging probation violations by Benton. It was alleged that Benton left his approved residence and absconded from supervision.

On November 24, 1982, Benton was charged with grand theft and uttering a forged instrument. This is before us as no. 83-1225. These charges were separate from those in nos. 83-1223 and 83-1224. Benton pleaded guilty with the understanding that his sentence in no. 83-1225 would be limited to “two years.” That sentence would have run consecutive to the sentences imposed upon the revocation of his probation in nos. 83-1223 and 83-1224.

Amended affidavits were filed alleging that Benton violated the conditions of his probation by changing his residence without consent and by failing to live and remain at liberty without violating any law.

The trial court revoked Benton’s probation in nos. 83-1223 and 83-1224; the court stated at the hearing that the revocation was based on Benton’s plea of guilty in no. 83-1225. The written orders of revocation indicate that Benton violated his probation as alleged in the amended violation of probation affidavits.

In no. 83-1223, Benton was sentenced to two concurrent terms of five years imprisonment. In no. 83-1224, a two-year sentence of imprisonment was imposed consecutive to the sentences in no. 83-1223. In no. 83-1225, Benton was sentenced to two concurrent terms of five years probation, consecutive to the sentence in no. 83-1224.

No evidence was presented below in support of the allegations in the amended affidavits that Benton had violated his probation by changing his residence without the consent of his probation officer. For that reason, we strike from the trial court’s revocation orders the references to those allegations. Nevertheless, we affirm the revocation of Benton’s probation in nos. 83-1223 and 83-1224 as the guilty plea in no. 83-1225 is evidence of a substantial violation of probation sufficient to support the revocation of Benton’s probation. Scherer v. State, 366 So.2d 840 (Fla. 2d DCA 1979).

From the record before us, it appears that Benton was not sentenced in accordance with the plea agreement in no. 83-1225. The record indicates that Benton pleaded guilty with the understanding that he would be sentenced for “two years” to run consecutive to the sentences imposed upon the revocation of his probation. In fact, Benton was sentenced to two concurrent terms of five years probation consecutive to the sentence in no. 83-1224.

The record also reveals that Benton made no objection to the trial court concerning the sentences in no. 83-1225. Nor did Benton move to withdraw the plea of guilty upon learning that the sentencing would not be in accordance with his understanding of the plea agreement.

It is clear that objections to sentencing are to be first raised before the trial court. As Benton failed to do so, we affirm the judgment and sentences in no. 83-1225 without prejudice to the filing of an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850. In such a motion, Benton may attack infirmities in his sentencing in no. 83-1225. McIntyre v. State, 427 So.2d 1108 (Fla. 3d DCA 1983); Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982); Medina v. State, 411 So.2d 323 (Fla. 5th DCA 1982); Fuller v. State, 406 So.2d 1212 (Fla. 3d DCA 1981). See Castor v. State, 365 So.2d 701 (Fla.1978).

AFFIRMED.

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


author: CAMPBELL, Judge.

text:
    Simeon MANALILI, et al., Petitioners, v. COMMERCIAL MOWING AND GRADING, a Florida corporation, Respondent.
    No. 83-2181.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.

      Kevin F. Jursinski, Fort Myers, for petitioners.
    James L. Goetz, Fort Myers, for respondent.
   CAMPBELL, Judge.

Petitioners, Simeon and Lydia Manalili, petitioned this court for a writ of certiorari following the trial court’s denial of a motion to compel arbitration. We find the trial court was in error and grant the petition for certiorari.

Petitioners entered into a contract on January 28, 1983, with respondent, Commercial Mowing and Grading, a Florida corporation. For the sum of $15,732, respondent agreed to construct a driveway, and grade and fill petitioners’ property.

The contract included the American Institute of Architect’s General Conditions (AIA Code). The AIA Code provides for arbitration between the parties.

A dispute arose regarding payment. Respondent claimed the work was satisfactorily performed; petitioners claimed the fill materials were not acceptable, and refused to pay. Respondent and petitioners submitted the dispute to the engineer/designer of the project who found that respondent had not satisfactorily performed the contract. He did not enter a written decision. Subsequently, respondent filed a complaint in the circuit court against petitioners for foreclosure of a mechanic’s lien, breach of contract, quantum meruit, goods sold and delivered, and foreclosure of an equitable lien, all counts arising out of the work performed by respondent for petitioners under the contract presented here. Petitioners then filed a motion to stay the proceedings and a demand for arbitration which was denied. As a result of that denial, petitioners filed this petition for a writ of certiorari.

An order denying the right to compel arbitration forces the parties to litigate and defeats the purpose of the arbitration clause. Therefore, where a right to compel arbitration exists, such a denial “departs from the essential requirements of law.” The jurisdiction of this court is thereby properly invoked, pursuant to Florida Rule of Appellate Procedure 9.100. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980); Morton Z. Levine and Associates, Chartered v. Van DeRee, 334 So.2d 287 (Fla. 2d DCA 1976).

The argument below centered around the lack of a written determination of the dispute by the “architect.” As previously stated, this dispute was in fact submitted to the engineer/designer since there was no architect for the project.

The trial court denied the motion to compel arbitration on the ground that there was no written decision by an architect as required by article 2.2.12 of the AIA Code. Section 2.2.12 states that:

[N]o demand for arbitration of any such claim, dispute or other matter may be made until the earlier of (1) the date on which the Architect has rendered a written decision, or (2) the tenth day after the parties have presented their evidence to the Architect or have been given a reasonable opportunity to do so, if the Architect has not rendered his written decision by that date.

We find the trial court’s reason for refusing to compel arbitration was improper. Article 2.2.12 establishes time limits for making a demand for arbitration. It does not provide that a written decision by an architect is a condition precedent to a demand for arbitration. Respondent now argues to this court that there was no right to arbitration inasmuch as no architect was involved in the project, and the dispute had instead been presented to the engineer/designer.

Generally, before a right to compel arbitration arises, the petitioners must establish that there was a written agreement containing an arbitration clause, the existence of an arbitrable issue, and that the right to arbitrate has not been waived. § 682.03, Fla.Stat. (1981), and William Passalacqua Builders, Inc. v. Mayfair House Association, Inc., 395 So.2d 1171 (Fla. 4th DCA 1981). Under respondent’s new argument, the issue is whether arbitration is available under the terms of the agreement.

Respondent claims that arbitration is not available until the issue is submitted to a licensed architect, rather than an engineer/designer, pursuant to article 2.1.1. Article 2 is entitled “Architect.” Article 2.1.1 defines an architect as follows:

The Architect is the person lawfully licensed to practice architecture, or an entity lawfully practicing architecture identified as such in the Owner-Contractor Agreement, and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term Architect means the Architect or his authorized representative.

Petitioners contend that article 7.9 provides a right to arbitrate the dispute. Article 7.9 is entitled “Arbitration.” Article 7.9 provides that:

[A]ll claims, disputes and other matters in question between the Contractor and Owner, arising out of or relating to, the Contract Documents, or the breach thereof, except as provided by subparagraph 2.2.11, with respect to Architect’s decisions on matters relating to artistic effect and, except for claims which have been waived by the making or acceptance of final payment as provided in subpara-graph 9.9.4 and 9.9.5 shall be decided by arbitration ... unless the parties mutually agree otherwise.

Respondent’s claim.must fail. Article 2.1.1 deals exclusively with the architect and his duties. Article 7.9 sets forth the basis for arbitration and controls the entire code. It provides that all claims and disputes shall be subject to arbitration. Article 7.9 does not demand the use of an architect. The code does not contemplate a presentation of the dispute to a licensed architect as a condition precedent to the right to arbitrate, if in fact there is no architect for the project.

As to respondent’s other points, we find no merit.

Thus, there is a right to arbitrate under the terms of the contract. The statutory prerequisites of the right to compel arbitration have also been met. The petition for writ of certiorari is granted. The order denying the motion to compel arbitration is quashed with directions to proceed with arbitration according to the terms of the agreement.

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


text:
    Philip G. STIMPSON, Appellant, v. Anke R. STIMPSON, Appellee.
    No. 83-2583.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Hershoff & Levy and Jay M. Levy, Miami, for appellant.
    Alan Rosenthal, Miami, for appellee.

      Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   Upon Confession of Error

PER CURIAM.

Upon the appellee’s confession of error and our review of the record, the order of sequestration entered against the appellant without securing jurisdiction over his person is reversed.


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. and Marian Brawley, III, Petitioners, v. WESTWIND TRANSPORTATION, INC., Respondent.
    No. 83-885.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.

      Charles P. Schropp and Raymond T. Elli-gett, Jr., of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for petitioners.
    John W. Frost, II, and Joseph P. Mawhin-ney of Frost, Purcell & Lilly, P.A., Bartow, for respondent.
   RYDER, Judge.

Merrill, Lynch, Pierce, Fenner and Smith, Inc. (Merrill Lynch) and Marian Brawley, III have petitioned this court for the issuance of a writ of certiorari and review of their cause following the trial court’s denial of their motion to compel arbitration and/or motion to stay proceedings pending arbitration. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A).

In November 1982, respondent Westwind Transportation, Inc. (Westwind) filed a complaint against Merrill Lynch and Braw-ley alleging negligence, misrepresentation and omission, and breach of contract based on option transactions in the stock market. It was alleged that the trading occurred from May to September 1982.

In December 1982, Merrill Lynch and Brawley filed a motion to compel arbitration and/or motion to stay proceedings pending arbitration. Petitioners relied upon the following portions of an agreement signed by Westwind’s agent:

9. Any controversy between us arising out of such option transactions or this agreement shall be settled by arbitration before the National Association of Securities Dealers Incorporated or the New York State Exchange or an Exchange located in the United States upon which listed option transactions are executed only. We shall have the right of election as to which of the foregoing tribunals shall conduct the arbitration. Such election is to be by registered mail, addressed to Merrill Lynch’s head office at 165 Broadway, New York, N.Y. 10006, attention of the Law Department. Our notice of election is to be postmarked within five days after the date of your demand to make such election. At the expiration of the five days, we hereby authorize Merrill Lynch to make such election on our behalf.
1Ó. This agreement and its enforcement shall be governed by the laws of the State of New York except as otherwise specifically indicated.

The trial court denied the motions without making any express findings.

Thereafter, in January 1983, the petitioners filed an answer to the complaint and raised several defenses, the ninth of which related to the agreement for arbitration.

On February 25, 1983, the deposition of Westwind’s president was taken. At that time, he stated that no option trading involving Westwind had occurred prior to June 9, 1982; an important date, for the agreement containing the arbitration clause was signed on June 9, 1982.

Merrill Lynch and Brawley renewed their motions on February 28, 1983. It was indicated that the motions were being filed pursuant to the Federal Arbitration Act, 9 U.S.C.S. §§ 1-14 (Law.Co-op.1978 & Supp. 1983).

In March 1983, a hearing was held on the renewed motions. The trial judge expressed a belief that his previous denial of the motions had “become the law of the case here and I think I’m going to stick with my original ruling.” In the written order, the court stated:

From a review of the record, it appears that this is the second such motion so captioned and filed by Defendants with this Court, both being virtually identical in substance and seeking the same relief. The Court, having previously considered and denied such relief in its Order of December 22, 1982, thereby establishing the law of the case and from which Defendants did not seek appellate review, it is, upon consideration
ORDERED and ADJUDGED that Defendant’s second Motion to Compel Arbitration and/or Motion to Stay Proceedings Pending Arbitration is hereby denied.

Following this denial of their motions, Merrill Lynch and Brawley invoked the cer-tiorari jurisdiction of this court. They contend that the trial court, by relying on the law of the case doctrine in denying the renewed motions and in failing to give effect to the agreement to arbitrate, departed from the essential requirements of law, causing irreparable injury. The petitioners state that the failure to seek review of the first denial of their motions did not preclude the trial court from reconsidering those motions at a later date.

The petitioners emphasize that West-wind’s complaint alleged that the option transactions began in May 1982, prior to the execution of the agreement containing the arbitration clause. The true fact, realized after the denial of the initial motions, is that the option trading began on the same date that the parties entered into the agreement. Merrill Lynch and Brawley conclude that there was no substantive basis for appellate review following the first denial of their motions as the denial was made before the true date of the beginning of the option trading was known. Hence, the failure to review the first denial did not preclude the trial court from reconsidering the motion, either because the law of the case doctrine or on a res judicata basis. It is further noted by the petitioners that the first denial of their motions was an interlocutory order, and as such, it did not need to be immediately appealed for such an order is subject to modification any time before final judgment.

In response, Westwind argues that following the first denial of the petitioners’ motions, Merrill Lynch and Brawley did not seek review of that denial, they filed an answer and defenses, and they commenced “rather aggressive” discovery. Also, at the first hearing, the petitioners failed to present evidence to show the actual date when the option trading began. In addition to the foregoing, and as the two motions filed by the petitioners were nearly identical, Westwind concludes that the petition for writ of certiorari should be denied.

Westwind has pointed out a statement by the trial court that the arbitration clause did not apply to the conduct complained of in this matter. Westwind attempts to distinguish the cases cited by the petitioners and argues that Merrill Lynch and Brawley have fallen victim to their own action or inaction. It is also urged by Westwind that the procedural provisions of the Florida Arbitration Code apply in this case and thus the petition should be denied.

It is clear that a petition for writ of certiorari is the proper vehicle for review of an interlocutory order denying an application for arbitration. Lipton Professional Soccer, Inc. v. Mijatovic, 416 So.2d 1236 (Fla. 1st DCA 1982); Merrill Lynch Pierce Fenner & Smith Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981); McAllister v. Giroux, 401 So.2d 908 (Fla. 2d DCA 1981). Under the circumstances of this case, we agree with the petitioners’ arguments and grant the petition.

Initially, we note that under the law of the case doctrine, the trial court was not required to deny the petitioners’ second set of motions. No law of the case was created by the trial court’s initial denial of the petitioners’ motions. The law of the case doctrine applies when an appellate decision has been rendered in a case; such a decision is binding on subsequent proceedings of that case. Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976).

Additionally, Merrill Lynch and Brawley were not required to appeal the initial denial of their motions. Sée Fla.R. App.P. 9.130(g). That denial was, indeed, an interlocutory order. The trial court could have reconsidered its denial of the motions.

The arbitration agreement was effective at the time that the option trading by the petitioners, on behalf of Westwind, had begun. That agreement, signed by an agent for Westwind, provides for the settlement by arbitration of any controversy arising out of the option transactions or the agreement itself. The allegations of wrongdoing made in Westwind’s complaint call into play the arbitration clause. As option trading is an area of interstate commerce, the provisions of the Federal Arbitration Act, 9 U.S.C.S. §§ 1-14 (Law.Co-op. 1978 & Supp.1983), apply and preempt the provisions of the Florida Arbitration Code, chapter 682, Florida Statutes (1981). Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637 F.2d 391 (5th Cir.1981); Melamed, supra.

Under the federal provisions, the agreement to submit to arbitration is valid, irrevocable and enforceable except on such grounds which exist at law or in equity for the revocation of the contract. 9 U.S.C.S. § 2 (Law.Co-op.1978 & Supp.1983). No grounds have been alleged by Westwind to attack the validity of the agreement. Instead, the grounds alleged in the respondent’s complaint attack the handling of its account. While there is an allegation of a breach of contract, nowhere has Westwind made allegations seeking to revoke the agreement containing the arbitration clause. Cf. Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982), petition for review denied, 433 So.2d 519 (Fla.1983).

Merrill Lynch and Brawley filed their answer and defenses after the trial court denied the initial motions. Discovery also was undertaken after this denial. Apparently, it was through discovery that Merrill Lynch and Brawley became aware that no option trading had begun prior to the entry by the parties into the agreement containing the arbitration clause. Following their enlightenment on this point, the petitioners reasserted their motion to compel and/or stay.

Petitioners have not waived the right to arbitration. They have not acted inconsistently with their demand for arbitration, and have not participated in the lawsuit in a manner which would support a finding of waiver. Balboa Insurance Co. v. W.G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981). See Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976). Cf. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); Hansen v. Dean Witter Reynolds, Inc., 408 So.2d 658 (Fla. 3d DCA 1981), petition for review denied, 417 So.2d 328 (Fla.1982).

Westwind has argued that the petitioners knew or should have known the actual date when the pertinent option trading began and, therefore, Merrill Lynch and Brawley should have raised that point in the initial motions. That argument is a two-edged sword which applies with equal force to Westwind: it knew or should have known when its option trading actually began, and it should not have made an erroneous allegation on that point in its complaint. West-wind’s inaccuracy in the allegations of the complaint should not work to their benefit and to the detriment of the petitioners. These arguments should not and will not deprive Merrill Lynch and Brawley of their right to arbitration.

After considering cases which discuss the Florida Securities Act in relation to the Florida Arbitration Code and the Federal Arbitration Act, we conclude that in the case sub judice the Federal Arbitration Act is controlling. See Kroog v. Mait, 712 F.2d 1148 (7th Cir.1983); Young v. Oppenheimer & Co., Inc., 434 So.2d 369 (Fla. 3d DCA 1983); Shearson Hammill & Co., Inc. v. Vouis, 247 So.2d 733 (Fla. 3d DCA), cert. denied, 253 So.2d 444 (Fla.1971).

To summarize, we hold that the trial court departed from the essential requirements of law, causing irreparable injury, by denying the petitioners’ motion to compel arbitration and/or motion to stay proceedings pending arbitration. Accordingly, the petition for writ of certiorari is granted, the writ is issued, and the decision below is quashed. We remand this cause for entry of an order compelling arbitration and staying further proceedings pending arbitration.

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


text:
    Harry REIBEL, Appellant, v. Irwin A. WEISER, C.P.A., et al., Appellees.
    No. 82-1586.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Gerald Mager and Andrew T. Lavin of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    Marshall G. Curran, Jr., of Spear, Deuschle & Curran, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal by the defendant from a final judgment which resulted from a lawsuit over the dissolution of an accounting firm. Suit was originally brought on the theory of a breach of contract relating to a buy-out of the customer accounts upon dissolution of the business. Although the court denied the plaintiff relief on the theory of breach of a written contract, the court awarded damages on the theory of unjust enrichment. There is clear and adequate evidence to support the factual findings of the trial court and the judgment is affirmed. Precisely the same result might have been more appropriately reached by reliance upon theories of oral contract or implied contract. In actuality, the trial court found a binding agreement between the parties but couched the judgment in terms of unjust enrichment. The final judgment is affirmed.

AFFIRMED.

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    David Lutz LANDRAU, Appellant, v. STATE of Florida, Appellee.
    No. 82-1977.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, and Bruce M. Lee, Asst. Attys. Gen., West Palm Beach, for appel-lee.
   HERSEY, Judge.

This appeal raises two issues. The first, whether narrative testimony by the victim of an attempted murder as to his pain and suffering and the medical measures that were taken because of his gunshot wound was irrelevant, we dispose of as harmless error, the testimony having been brief and the evidence of guilt overwhelming. See McGriff v. State, 417 So.2d 300 (Fla. 3d DCA 1982). The second error complained of occurs in the sentence. The trial court retained jurisdiction over a portion of the sentence allegedly without stating grounds therefor with sufficient particularity. The error, however, was not preserved for review nor is it fundamental. McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982); Hernandez v. State, 425 So.2d 213 (Fla. 4th DCA 1983).

Accordingly, we affirm.

AFFIRMED.

ANSTEAD, C.J., and DELL, J., concur.


author: DOWNEY, Judge.

text:
    Roger MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2222.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.

      Patrick C. Rastatter of Glass, Rastatter & Tarlowe, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant entered a plea in the circuit court of nolo contendere to the charges of (Count I) possession of diazepam and (Count II) driving while under the influence of alcoholic beverage, reserving the right to appeal the denial of his motion to dismiss Count II. The basis for the motion was that the trial court lacked subject matter jurisdiction over Count II because the crime charged was a statutorily defined criminal traffic offense not constituting a misdemeanor or a felony and therefore not within the court’s jurisdiction under Article V, Section 20(c)(3) of the Florida Constitution.

Appellant was charged in Count II with violating section 316.193, Florida Statutes (1981), which states in part:

316.193 Driving while under the influence of alcoholic beverages, model glue, or controlled substances.—
(1) It is unlawful and punishable as provided in subsection (2) for any person who is under the influence of alcoholic beverages, model glue, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle within this state.
(2) Any person who is convicted of a violation of subsection (1) shall be punished:
(a) For first conviction thereof, by imprisonment for not more than 6 months or by a fine of not less than $25 or more than $500, or by both such fine and imprisonment.
(b) For a second conviction within a period of 3 years from the date of a prior conviction for violation of this section, by imprisonment for not less than 10 days nor more than 6 months and, in the discretion of the court, a fine of not more than $500.
(c) For a third or subsequent conviction within a period of 5 years from the date of conviction of the first of three or more violations of this section, by imprisonment for not less than 30 days nor more than 12 months and, in the discretion of the court, a fine of not more than $i;ooo.

To support his contention that the circuit court lacked jurisdiction because the above crime is not a misdemeanor, appellant cites the following statute:

775.08 Classes and definitions of offenses. — When used in the laws of this state:
(1) The term “felony” shall mean any criminal offense that is punishable under the laws of this state or that would be punishable if committed in this state, by death or imprisonment in a state penitentiary. ...
(2) The term “misdemeanor” shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term “misdemeanor” shall not mean a conviction for any violation of any provision of chapter 316 or any municipal or county ordinance.
(3) The term “noncriminal violation” shall mean any offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term “noncriminal violation” shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.
(4) The term “crime” shall mean a felony or misdemeanor.
—§ 775.08, Florida Statutes (1981).

In Thompson v. Office of the Public Defender, etc., 387 So.2d 541 (Fla. 5th DCA 1980), the public defender contended that he had no authority to represent an insolvent defendant charged with driving under the influence of alcoholic beverages because it was neither a felony nor a misdemeanor under section 775.08. The district court reviewed sections 316.193(1), (2), 775.-08(2), (3), reproduced above, and section 316.655:

316.655 Penalties.—
(1) A violation of the provisions of this chapter, except criminal offenses enumerated in subsection (4), shall be deemed an infraction, as defined in s. 318.13(3).
(4) Any person convicted of a violation of s. 316.027, s. 316.061, s. 316.067, s. 316.072, s. 316.192, s. 316.193, or s. 316.-1935 shall be punished as specifically provided in that section....
—§ 316.655, Florida Statutes (1981).

The court determined that “these sections read together state that a violation of section 316.193 is a ‘criminal offense.’ We do not believe it can be seriously questioned that a ‘criminal offense’ is a crime. Section 775.08(4) states that the ‘term “crime” shall mean a felony or misdemeanor.’ ” The court also looked to section 318.13(3), which states, “ ‘[infraction’ means a noncriminal violation which is not punishable by incarceration...” and noted that the offense described in section 316.193 is not an infraction or noncriminal violation inasmuch as it is punishable by incarceration. Thompson, supra, at 543.

We agree with the district court’s conclusion that a violation of section 316.193(1) was a crime which constituted a misdemeanor based on the punishment therefor. See State v. Bailey, 360 So.2d 772 (Fla.1978). In Nettleton v. Doughtie, 373 So.2d 667 (Fla.1979), the supreme court held that, even though no statute authorized the county court to try noncriminal infractions under chapter 316, Florida Statutes (1977), the legislature clearly intended that jurisdiction remain vested in that court.

The legislature changed certain traffic violations from criminal misdemeanors to noncriminal traffic infractions.... In so doing, they did not add or take away any jurisdiction from the judicial branch but only changed its character from criminal to civil (emphasis added).
—Nettleton, supra, at 668.

While the legislature may have envisioned a distinction between the offense of driving under the influence of alcoholic beverage and other misdemeanor offenses for certain purposes, i.e., in order to enumerate particular penalties for the former, we conclude that the legislature did not intend to alter its essential character as a criminal offense constituting a misdemeanor as that term is used in defining the jurisdiction of the circuit court. See § 26.012, Florida Statutes (1981).

For the foregoing reasons, we hold that the trial court did not err in denying appellant’s motion to dismiss.

AFFIRMED.

DELL and WALDEN, JJ., concur.

      . This section states that "Circuit courts shall have jurisdiction ... of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.” See also § 26.012(2)(d), Florida Statutes (1981).

      . § 316.193, Florida Statutes (1979).

      . See § 27.51, Florida Statutes (1979) (enumerating classes of persons eligible for public defender representation).

      . The statutory provisions discussed in Thompson are identical in relevant part to those applicable sub judice and referred to herein.

      . See § 775.082(4), (5), Florida Statutes (1981).


author: SIMONS, STUART M., Associate Judge.

text:
    ESTATE OF Stephen W. REBACK, Appellant, v. Mildred I. REBACK, Appellee.
    No. 82-2388.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    James E. Knight, Stuart, and Edna L. Caruso, West Palm Beach, for appellant.
    Russell J. Ferraro of McManus, Stewart & Ferraro, P.A., Stuart, for appellee.
   SIMONS, STUART M., Associate Judge.

This is an appeal by the estate of the husband in a dissolution action. We affirm.

The parties were divorced in June, 1980, after six years of marriage. The final judgment of divorce awarded the wife, among other things, exclusive possession of the marital residence for 18 months with the residence partitioned thereafter. The wife also received $1,000 rehabilitative alimony for 18 months. Nine months after the final judgment, the husband died. The wife then filed a petition for modification. The trial court entered an order on November 24, 1981, granting the rehabilitative alimony as a claim against the husband’s estate, among other things. A partition action ensued and on October 27, 1982, an order approving the sale of the home and disbursing funds was entered.

On appeal, the estate challenges the award of rehabilitative alimony and the award of attorney’s fees.

The order entered on November 24,1981, granting rehabilitative alimony as a claim against the husband’s estate was a final order. DeFilippis v. DeFilippis, 378 So.2d 325 (Fla. 4th DCA 1980). Florida Rule of Appellate Procedure 9.110(b) provides that an appeal from a final order of a trial court shall be filed within thirty days of the rendition of the order to be reviewed. The notice of appeal in the case at bar was not filed until November 18, 1982. Therefore, this court is without jurisdiction to consider the issue.

The estate also challenges the amount of the award for attorney’s fees. We find sufficient evidence in the record to support the award.

AFFIRMED.

HURLEY and DELL, JJ., concur.