text:
    BURNUP & SIMS TELECOM, INC., Appellant, v. R.C. WHITE, Appellee.
    No. AV-74.
    District Court of Appeal of Florida, First District.
    May 2, 1984.

      C. Anthony Schoder, Jr., Daytona Beach, for appellant.
    Edward H. Hurt, Orlando, for appellee.
   WENTWORTH, Judge.

This is an appeal from an order finding that the claimant suffered a compensable accident entitling him to temporary total disability benefits. We affirm.

Claimant is a 47 year old black male with a second grade education. He had been working for the employer since 1963 at various jobs until he was hospitalized in January, 1983. Claimant testified that on June 16, 1982, he was working at a job site and flipped backwards over machinery so that his neck and upper back hit something. Claimant testified that he felt pain at the time but rubbed his neck and kept on working. He also testified that he told his foreman about the incident but said that as far as he knew he was okay. Claimant testified that on several occasions over the ensuing months he complained to various supervisors about pain in his neck but was told to go back to work. He did not testify that he connected the increasing pain in his neck with the June 16 accident. In December 1982, claimant’s arms and legs began to become numb and weak, and finally in January 1983 he sought medical treatment. Claimant was then referred to a neurosurgeon, Dr. Scott, who performed a cervical laminectomy on February 18, 1983. Claimant was in the hospital until April 4, 1983. When he was discharged he went to a lawyer who filed a claim for workers’ compensation benefits on April 25, 1983.

In awarding benefits, the deputy found that the claim filed in April 1983 served as proper notice of the injury suffered by claimant on June 16, 1982. She excused the failure to report the accident within thirty days on the basis of Escarra v. Winn Dixie, 131 So.2d 483 (Fla.1961). She therefore awarded temporary total disability benefits at the proper compensation rate from February 1, 1983, to the date of the hearing.

Appellant argues in part that it was prejudiced by the failure to report the accident because claimant’s condition got worse because he kept working after he was injured. Thus, appellant asserts that claimant’s injury was worse than it would have been had he promptly reported it, citing Overholser Construction Co. v. Porter, 173 So.2d 697 (Fla.1964). The fact that the cited opinion contains an explanation of the importance of prompt reporting does not support appellant’s contention that when the failure to report is properly excused benefits should be denied if the employer was prejudiced by the delay.

Affirmed.

ZEHMER and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Vernell HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. AX-87.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Vernell Hamilton, in pro. per.
    No appearance for appellee.
   PER CURIAM.

This Court has previously affirmed appellant’s conviction of burglary of a dwelling and fifteen year sentence. Hamilton v. State, 434 So.2d 891 (Fla. 1st DCA 1983). His motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, improperly raised two issues that the trial court correctly denied as they should have been raised on direct appeal and may not now be considered. Christopher v. State, 416 So.2d 450 (Fla.1982).

AFFIRMED.

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


text:
    Mary M. DUSSICH, Appellant, v. Joseph A. DUSSICH, Appellee.
    Nos. 83-624, 83-1118.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied May 22, 1984.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, and S. Robert Zimmerman, P.A., Pompano Beach, for appellant.
    John B. DiChiara of Di Giulian & DiChiara, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

In this consolidated appeal, the wife, through counsel, contests an order abating the dissolution proceeding and an order denying her counsel’s motion for attorney’s fees and costs. We affirm in part, reverse in part and remand with instructions.

Mrs. Dussich disappeared in early 1982, about a year after her husband had filed for divorce. Thereafter, Mr. Dussich moved for and received an order abating his temporary alimony obligation and staying all proceedings for six months. In February of 1983, the trial court granted the husband’s motion to abate the dissolution proceeding because the wife had not reappeared. At the same time, the trial court denied the wife’s attorney’s motion for temporary attorney’s fees and costs. This appeal ensued.

Since dissolution actions are governed by equitable principles, we think it is more appropriate to construe the order of abatement as granting an indefinite stay rather than a dismissal. Cf. Ruckdeschel v. Van Sweden, 336 So.2d 1230 (Fla. 2d DCA 1976). With this characterization, we approve the order of abatement.

Entry of an indefinite stay, however, ineluctably leads us to conclude that the trial court abused its discretion by failing to award temporary attorney’s fees and costs to the wife’s counsel. The parties’ respective financial positions clearly demonstrate the wife’s need for, and the husband’s ability to provide, assistance in paying attorney’s fees and costs. Under the facts of this case, we hold that the trial court abused its discretion by indefinitely postponing compensation to the wife’s counsel.

Accordingly, we affirm in part, reverse in part and remand with instructions to award temporary attorney’s fees and costs to the wife.

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Ivan GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1012.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Richard L. Jorandby, Public Defender, and Glenalee Kretschmer, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Although we conclude that the trial court erred in admitting a roll of coins into evidence at defendant’s robbery trial, we find that the error was harmless in light of the overwhelming evidence of the defendant’s participation in the crime. See Sections 59.041 and 924.33, Florida Statutes (1983). Accordingly, the defendant’s conviction and sentences are affirmed.

GLICKSTEIN and HURLEY, JJ., concur.

WALDEN, J., dissents without opinion.


author: PER CURIAM. WALDEN, Judge,

text:
    Kenneth D. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2255.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Richard L. Jorandby, Public Defender, Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and reject his claim that the trial court improperly honored a codefendant’s refusal to testify in the face of the unchallenged and unrebutted statements on the record by the trial court that no plea agreement by the codefendant had yet been accepted by the court. See Ivey v. Eastmoore, 402 So.2d 1248, 1249 (Fla. 5th DCA 1981); Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981); Dearing v. State, 388 So.2d 296 (Fla. 3d DCA 1980); Brinson v. State, 382 So.2d 322 (Fla. 2d DCA 1979); King v. State, 353 So.2d 180 (Fla. 3d DCA 1977). Cf. Lopez v. State, 349 So.2d 1198 (Fla. 2d DCA 1977).

ANSTEAD, C.J., and GLICKSTEIN, J., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting.

In my opinion the trial court committed reversible error in failing to make a voir dire inquiry to determine if the witness was entitled to his Fifth Amendment claim. I would reverse upon authority of Lopez v. State, 349 So.2d 1198 (Fla. 2d DCA 1977) and allied cases.


author: LEHAN, Judge. GRIMES, Acting Chief Judge, SCHOONOVER, Judge,

text:
    STATE of Florida, Appellant, v. Edward Albert RYDER, Appellee.
    No. 83-1010.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellee.
   LEHAN, Judge.

The state appeals from an order discharging defendant on speedy trial grounds. We reverse. We hold that defendant’s pretrial waiver of speedy trial rights also applied to the ninety day period for retrial after a mistrial.

On September 8, 1981 defendant was charged with sale of marijuana. He was arrested on that charge two days later. On February 16, 1982, defendant obtained a continuance, explicitly waiving speedy trial rights. Defendant received a further continuance on July 7, 1982, reiterating his previous waiver of “all right to a speedy trial.”

The trial began on September 29, 1982, but defendant was granted a mistrial on the second day of trial. Thereafter, on March 29, 1983, defendant filed a motion for discharge, alleging that more than ninety days had elapsed from the date of the mistrial and that discharge was appropriate under Florida Rule of Criminal Procedure 3.191(g). The trial court discharged defendant, and the state brought this appeal.

The state contends that defendant’s waiver of speedy trial rights applied not only to defendant’s right to be brought to trial initially within a certain period but also to the right provided in Rule 3.191(g) to be brought to trial within ninety days after declaration of a mistrial. Defendant argues that, despite a pretrial waiver, the running of the speedy trial time is recommenced by a mistrial just as by a demand for speedy trial under rule 3.191(a)(2) or a denial of a motion to discharge under rule 3.191(d)(3).

We have not found a Florida case that addresses the precise issue presented here. However, we believe that the defendant’s pretrial waiver of his right to speedy trial applied through the trial phase of the proceedings, including a retrial after mistrial. See Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). Cf State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980) (waiver of speedy trial applicable where state files amended information charging a crime arising out of same criminal episode that formed basis of original information); State v. Trimel, 387 So.2d 528 (Fla. 4th DCA 1980) (waiver of speedy trial applies where state refiles information after nolle prosequi).

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

GRIMES, A.C.J., concurs specially.

SCHOONOVER, J., dissents with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

Under the principles of Butterworth v. Fluellen, when the defendant moved for a continuance he waived his right to rely upon the speedy trial rule but retained the right to reinvoke the rule by the filing of either a demand for a speedy trial or an unsuccessful motion for discharge. Since the defendant did not follow either of these procedures, the speedy trial rule remained inapplicable and subsection (g) never came into play. Therefore, in the absence of a showing that the defendant’s constitutional right to a speedy trial was violated, the court erred in ordering the defendant’s discharge.

SCHOONOVER, Judge,

dissenting.

I respectfully dissent. Defendant’s pretrial waiver of his speedy trial rights under rule 3.191(a)(1) did not apply to his right to be brought to trial within ninety days after declaration of a mistrial under rule 3.191(g).

I agree that once defendant moved for and was granted a continuance, he waived his right to a speedy trial under rule 3.191(a)(1). I do not agree, however, that a pretrial waiver can operate to waive a right that did not exist until a mistrial was declared. Once the trial court declared a mistrial, rule 3.191(g) became applicable and defendant acquired the right to be retried within ninety days of the order declaring a mistrial. State v. Jenkins, 389 So.2d 971 (Fla.1981). This rule acts independently of the general 180-day limit of rule 3.191(a)(1). Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981). To extend the defendant’s pretrial waiver to an independent right afforded him under rule 3.191(g) would be inconsistent with Dur-rance and Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). In Fluellen, the supreme court recognized that a defendant’s pretrial waiver cannot be applied to waive his rights under sections (a)(2) and (d)(3) of the speedy trial rule. Therefore, in the case sub judice, the defendant’s pretrial waiver should not be applied to waive his right under section (g) of the rule.

Furthermore, regardless of defendant’s waiver, rule 3.191(a)(1) was satisfied once defendant was brought to trial. State v. Musselwhite, 402 So.2d 1235 (Fla. 2d DCA 1981). Satisfaction of the rule in effect served to. extinguish defendant’s waiver of the rule. Because the waiver was extinguished, it cannot be applied to defendant’s later acquired rights under rule 3.191(g).

If the defendant in the case sub judice had filed a motion for continuance after the trial court declared a mistrial, the time limit set forth in rule 3.191(g) would have become inapplicable. Rather, the time in which the defendant could be retried would have to be judicially determined in light of the particular circumstances of the case. State v. Vukojevich, 392 So.2d 297 (Fla. 2d DCA 1981). The defendant, however, did not move for a continuance after the declaration of mistrial and took no other action inconsistent with the application of the rule. Therefore, I would find the trial court properly discharged the defendant. See Williams v. State, 421 So.2d 663 (Fla. 3d DCA 1982).


text:
    Columbus BRIDGES and Alma P. Bridges, his wife, Appellants, v. Carlton WILLIAMSON, Robert Lee Kitchen, Willie Pounsel, James Cowart, Lawrence Poindexter and Al Bridges, Appellees.
    No. 83-1622.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
    Alex D. Finch of Law Offices of Alex D. Finch, Clearwater, for appellants.
    Darryl Ervin Rouson of Robinson, Atha-nason, Steagall, Grant, Silvers & Biesinger, St. Petersburg, for appellees.
   PER CURIAM.

Appellants seek review of the trial court’s nonfinal order dismissing their complaint with leave to amend. We reverse.

Appellants, Columbus Bridges and Alma P. Bridges, his wife, filed a complaint in the trial court seeking compensatory and punitive damages for alleged defamatory statements made by appellees, Carlton Williams, Robert Lee Kitchen, Willie Pounsel, James Cowart, Lawrence Poindexter, and A1 Bridges. Some of the statements allegedly made by appellees were republished in a newspaper. Appellees filed a motion to dismiss the complaint because appellants failed to comply with section 770.01, Florida Statutes (1981). The trial court granted the motion but allowed appellants twenty days to amend their complaint to allege compliance with section 770.01. Appellants then filed an appeal of the trial court’s nonfinal order.

The order under review is a non-appealable nonfinal order because it afforded an opportunity for appellants to amend their complaint. This appeal is properly before us, however, because we have discretion to treat an improperly filed appeal as a petition for writ of certiorari. Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), cert. denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). Certiorari is available when the order under review does not conform to the essential requirements of law and may reasonably cause irreparable injury which cannot be remedied on appeal. Briggs. We grant certiorari in this case because compliance with the trial court order might result in republication of a libelous statement that could irreparably injure appellants. See § 770.02, Fla.Stat. (1981).

We hold chapter 770, Florida Statutes (1981), does not apply to nonmedia defendants even when alleged defamatory statements made by a nonmedia defendant are republished by the media. Therefore, we find the trial court erred in requiring appellant to comply with section 770.01.

Section 770.01, Florida Statutes (1981), provides as follows:

Notice condition precedent to action or prosecution for libel or slander. — Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he alleges to be false and defamatory.

The statute requires a plaintiff to serve notice on a defendant five days prior to instituting a civil action for libel or slander. This provision has been construed to apply exclusively to suits against newspapers and periodicals, as distinguished from private individuals. Ross v. Gore, 48 So.2d 412 (Fla.1950). In Ross, the supreme court recognized that one of the objectives of the statute was to afford newspapers and periodicals an opportunity to make full retraction in order to correct inadvertent errors and mitigate damages, as well as to save them the expense of answering to an unfounded suit for libel.

After Ross, the statute was amended to include civil actions for slander against broadcasting stations. Ch. 76-123, Laws of Fla. (1976) (codified as amended at § 770.01, Fla.Stat. (1983)). At that time, the legislature was aware of Ross since it is presumed to be cognizant of the judicial construction of a statute when contemplating changes in the statute. See Seddon v. Harpster, 403 So.2d 409 (Fla.1981). Had the legislature intended to extend the application of the statute to nonmedia defendants, it could have inserted such a provision into the statute at that time. See Reino v. State, 352 So.2d 853 (Fla.1977).

Appellees contend that, rather than follow the rationale in Ross, this court should defer to the federal court’s decision in Laney v. Knight-Ridder Newspapers, Inc., 532 F.Supp. 910 (S.D.Fla.1982). We disagree. The rules of stare decisis do not require this court to follow federal court decisions that construe Florida’s substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although the federal court in Laney extended the application of section 770.01 to include nonmedia defendants, we believe the legislature did not intend such an extension. The language of the statute is limited to newspapers, periodicals, and other media. Nowhere does the statute contain the words “nonmedia” or “private individuals.”

Accordingly, we grant the petition for writ of certiorari, quash the order dismissing appellants’ complaint, and remand for proceedings consistent herewith.

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

      . See Staff Analysis of Senate Judiciary-Civil Comm., 1976 Legis., 1st Sess., Libel, Slander and Invasion of Privacy by Publication or Broadcast (1976) (staff analysis by S. Kubik).


author: CAMPBELL, Acting Chief Judge.

text:
    Charles Forrest THAMES, Appellant, v. Linda THAMES, Appellee.
    No. 83-2543.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.
    Neil A. Malphurs of Malphurs & Brown, P.A., Alachua, for appellant.
    Jan J. Piper of Green, Piper, Davenport, Rowe & Stanton, St. Petersburg, for appel-lee.
   CAMPBELL, Acting Chief Judge.

Appellant, Charles Forrest Thames, seeks review of the order denying his motion for change of venue in a dissolution of marriage action. We reverse.

The parties were married on April 4, 1979. According to appellant’s uncontro-verted affidavit, the parties established their marital residence in Alachua County, Florida on July 15,1982. On or about June 22, 1983, appellee, Linda Thames, moved from the marital residence in Alachua County, Florida. Appellant continued to reside in the marital home in Alachua County, Florida. On June 27, 1983, appel-lee filed a petition for dissolution of marriage and other relief in Pinellas County, Florida.

On July 7, 1983, appellant filed a motion for change of venue. The motion was denied and this appeal followed.

Appellant argues that Pinellas County, Florida was not the proper forum for this dissolution of marriage action because the marriage was broken in Alachua County, Florida. We agree.

Section 47.011, Florida Statutes (1981), provides that actions may be brought in the county where the defendant resides, where the property in litigation is located, or where the cause of action arises. In Smith v. Smith, 430 So.2d 521 (Fla. 2d DCA 1983), this court held that in a dissolution of marriage action, the cause of action arises in the county where the parties were last present with the common intent to remain married. Smith citing Carroll v. Carroll, 322 So.2d 53 (Fla. 1st DCA 1975), affirmed 341 So.2d 771 (Fla.1977).

There is no property in litigation in this cause. Appellant’s sworn affidavit indicates that he continues to reside in Alachua County, Florida. Thus, the remaining basis for venue is where the cause of action arose. Again, according to appellant’s un-controverted affidavit, the last county where both parties were present with the common intent to remain married was Ala-chua County, Florida. Therefore, on the basis of Smith, venue is proper in Alachua County, Florida, not Pinellas County, Florida.

For these reasons, we reverse the trial court and remand the case for transfer to Alachua County, Florida.

SCHOONOVER and LEHAN, JJ., concur.


author: DAUKSCH, Judge.

text:
    Nicholas A. MOCCIA, Appellant, v. STATE of Florida, Appellee.
    No. 82-1727.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    James K. Freeland, P.A., and Joel A. Spector, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order denying a motion for discharge. The appellant urges he was denied a speedy trial under Rule 3.191. The trial judge made an error in his calculations and for that we must reverse.

The appellant was arrested on November 21, 1980, for a non-capital felony so his right to a speedy trial began that day and ran for 180 days. In his calculations, the judge figured as follows.

He [appellant] remained in the Seminole County Correctional Facility available for trial 94 days, or until he was taken into custody by Federal authorities and removed to stand trial on Federal charges in New Hampshire on February 23, 1981. The Defendant returned to Florida on August 25, 1981 and remained available for trial until October 11, 1981 [sic], when in custody of Federal authorities he was transported to the U.S. Penitentiary in Lewisburg, Pennsylvania to begin serving a Federal sentence. In this interim 47 [sic] days elapsed. The defendant returned to Florida the second time on October 7, 1982, and remained available for trial until November 16, 1982, when speedy trial was tolled by failure of the Defendant or counsel to appear for hearing scheduled by the latter on a motion for discharge of the Defendant which counsel had never filed. During the second interim 37 [sic] days elapsed. Thus, the total elapsed time the Defendant has been continuously available for trial in this court (using dates most favorable to the Defendant) is 178 [sic] days.

The correct calculations are as follows. The appellant was available for 94 days between November 21, 1980 and February 23, 1981. He was again available from August 25, 1981 until November 11, 1981 (the date the record indicates he was taken into custody to be transferred to the penitentiary). Thus, 78 more days elapsed. The appellant was also available from October 7, 1982 until at least November 16, 1982. Forty more days elapsed during this period. So, even as of November 16, 1982, a total of 212 days had elapsed. Thus, as said, the appellant must be discharged. The order denying discharge is reversed and this cause is remanded for entry of an order of discharge.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . The appellant was probably available even beyond this point since the record contains no notice to the appellant that a hearing would be held on that date.


text:
    Larry THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-878.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, 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.

AFFIRMED. See State v. Rozier, 436 So.2d 73 (Fla.1983); State v. Waters, 436 So.2d 66 (Fla.1983); Ellis v. State, 425 So.2d 201 (Fla. 5th DCA 1983), approved, 442 So.2d 213 (Fla.1983); Van Teamer v. State, 417 So.2d 1129 (Fla. 5th DCA 1982).

DAUKSCH, SHARP and COWART, JJ., concur.


text:
    Lucinda Mary LAWTON, Appellant, v. STATE of Florida, Appellee.
    No. AQ-77.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    Jack M. Ross, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Michigan v. Summers, 452 U.S. 692, 69 L.Ed.2d 340, 101 S.Ct. 2587 (1981), and Florida Statutes § 901.151 (1983).

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: ERVIN, Chief Judge.

text:
    EASTERN AIR LINES, INC., and Travelers Insurance Company, Appellants, v. Sheila M. FITZPATRICK and Division of Workers’ Compensation, Appellees.
    No. AU-98.
    District Court of Appeal of Florida, First District.
    May 3, 1984.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Betsy E. Hartley of Talburt, Kubicki & Bradley, Miami, for appellees.
   ERVIN, Chief Judge.

Appellants, the employer and carrier, contend the deputy commissioner erred in finding compensable an accident resulting in the aggravation of a ganglion on Fitzpatrick’s wrist. We disagree and affirm.

The record contains competent substantial evidence showing that Fitzpatrick’s original wrist ganglion in 1979 was work-related and was treated as such by Eastern’s orthopedic consultant, Dr. Jones. Fitzpatrick later suffered an accident on April 24, 1982 when she twisted or sprained her wrist while removing a tray containing three meals from an on-board oven resulting in immediate pain and an inability to fully carry out her duties. Competent medical testimony by Dr. Jones related the resulting ganglion node to Fitzpatrick’s work within a reasonable medical probability. Where, as here, an identifiable accident occurs, which either immediately or subsequently results in an injury, a claimant need not meet the enhanced evidentiary burden imposed in internal failure cases. Popiel v. Broward County School Board, 432 So.2d 1374, 1375 (Fla. 1st DCA 1983).

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


text:
    Janssen HAYES, Appellant, v. TROPICANA PRODUCTS, INC., Self-Insured, Appellee.
    No. AU-302.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    John D. Rawls of Anderson, Escarraz & Rawls, St. Petersburg, for appellant.
    James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See section 440.15(7), Florida Statutes (1981), now codified as section 440.15(6), Florida Statutes (1983).

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


text:
    The DELPHIAN GROUP and American Centennial Insurance Company, Inc., Appellants, v. Jose SOTO and Division of Workers’ Compensation, Appellees.
    No. AV-20.
    District Court of Appeal of Florida, First District.
    May 3, 1984.

      George O’Brien, Miami Shores, and Steven Kronenberg of Adams, Kelley & Kro-nenberg, Miami, for appellants.
    Jay M. Levy of Hershoff & Levy, Miami, for appellees.
   PER CURIAM.

AFFIRMED. See Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983); City of Hialeah v. Cascardo, 443 So.2d 448 (Fla. 1st DCA 1984).

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


text:
    Richard Michael Anthony LEE, Appellant, v. STATE of Florida, Appellee.
    No. AV-231.
    District Court of Appeal of Florida, First District.
    May 3, 1984.
    Michael Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having reviewed the entire record in the case before us, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no reversible error and affirm.

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


author: LEHAN, Judge.

text:
    Gary Leroy TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2275.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from the denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850 on the ground of ineffective assistance of counsel, arguing on appeal that he was entitled to appointment of counsel for the hearing on his 3.850 motion. ‘ We affirm.

Defendant’s petition was insufficient to warrant a hearing under the criteria of Knight v. State, 394 So.2d 997 (Fla.1981), and, therefore, defendant was not entitled to appointment of counsel. See Graham v. State, 372 So.2d 1363 (Fla.1979).

AFFIRMED.

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


text:
    Humberto PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-2852.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Humberto Perez, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals judgments and sentences for trafficking, possession, and delivery of methaqualone, possession of phe-nobarbitol, and trafficking in cocaine, violations of sections 893.135 and 893.13, Florida Statutes (1981). Defendant filed a pro se brief after defense counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree with defendant’s contentions that the trial court erred in denying the defendant’s motion to withdraw his nolo contendere plea.

At a combined change of plea and sentencing hearing, the court appointed an interpreter to assist in the proceeding because defendant was incapable of communicating in English. However, the trial court’s inquiry of defendant to determine the voluntariness of defendant’s plea pursuant to Florida Rule of Criminal Procedure 3.172(c) began before the interpreter’s participation in the proceeding had begun. In particular, the record reflects that the defendant was not advised, through the interpreter, on the possible minimum mandatory penalties which could be imposed. Such advice is necessary in order that a guilty or nolo contendere plea may be intelligently and voluntarily entered. See State v. Wilson, 395 So.2d 520 (Fla.1981); Thomas v. State, 386 So.2d 859 (Fla. 2d DCA 1980); Fla.R.Crim.P. 3.172(c)(i). Defendant adequately preserved this issue for appeal by moving to withdraw his plea. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The record also indicates that defendant lacked a full understanding of the court proceeding. For example, when asked if he understood that he was giving up certain rights by entering a plea, defendant responded:

THE INTERPRETER: The only people that he knows that would help him out are his parents and his wife but they weren’t when, you know, they weren’t with him when it happened and they don’t speak English anyway.

Additionally, during the prosecutor’s statement of the factual basis for the plea, defendant complained that he did not know what the prosecutor was talking about. Finally, after sentence was imposed, defendant questioned why he was sentenced to fifteen years (the minimum penalty for trafficking in methaqualone in the amounts charged).

Taken as a whole, the record shows that the defendant did not understand the nature and consequence of his plea. He should have been allowed to withdraw the plea. See Williams v. State, 365 So.2d 460 (Fla. 1st DCA 1978).

We therefore reverse and remand so that defendant may have the opportunity to enter a voluntary and intelligent plea or stand trial. Of course, if defendant again enters a plea, the trial court, in accordance with Florida Rule of Criminal Procedure 3.172(a), will satisfy itself that there is a factual basis for the charge of trafficking in cocaine. We do not see such a basis in the record.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


text:
    Dennie Lee STOKER, Appellant, v. STATE of Florida, Appellee.
    No. 83-762.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.

      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.
   LEHAN, Judge.

Defendant was convicted and sentenced for robbery with a weapon, in violation of section 812.13(2)(b), Florida Statutes (1981), and grand theft, in violation of section 812.014(2)(b), Florida Statutes (1981). Defendant raises three points on appeal. We find no merit in defendant’s first contention that photograph lineup identification procedures were improperly conducted. As to defendant’s second point, we find no double jeopardy in his convictions.

We agree with defendant’s last point and strike that portion of his sentence which requires him to pay restitution as a condition of parole. See Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983); Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983).

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


author: CAMPBELL, Judge.

text:
    Terry Lee COLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1681.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Terry Lee Coley, appeals his conviction and sentence for robbery with a firearm. Appellant argues that the trial court erred in allowing the prosecutor to comment on the truthfulness of his testimony. We affirm.

On November 14, 1982, appellant was arrested in a Wendy’s restaurant as a result of a call to the police from one of the employees stating that a robbery was taking place. When the police arrived, appellant was observed in the restaurant with a revolver in his hand. The officers thereupon ordered appellant to lie down and he was arrested. A set of brass knuckles and a revolver were found on the floor next to appellant.

Appellant testified that on the night in question, he and Lucious Weaver were driving to Sarasota when Weaver asked him to park his car so he could collect some money from a friend. Weaver then left the car on foot. Appellant then walked to Wendy’s because he was diabetic and needed to eat. When he arrived at the restaurant, he observed Weaver inside and knocked on the door. Weaver let appellant into the restaurant and appellant suggested they leave. He stated that he hoped to prevent Weaver from committing the robbery. However, when he realized that he could not stop Weaver, he laid down on the floor because he was weak and afraid.

At trial, the prosecutor commented on appellant’s testimony in his closing argument by raising doubts as to the truthfulness of appellant’s statements. We find no merit in appellant’s assertion that the trial court committed reversible error in allowing the prosecutor to attack his credibility.

There was overwhelming evidence against appellant, including the descriptive testimony of several employees who were at the restaurant when the robbery took place. Nevertheless, appellant took the stand and attempted to explain away his responsibility for the crime. As a result, the prosecutor pointed out in detail, from the facts and witnesses, the circumstances that indicated that appellant was lying.

In Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984), the court held certain comments made by the prosecutor to be legally harmless in light of the overwhelming evidence against Hall, which included the testimony of two eyewitnesses and the victim. Likewise, in State v. Murray, 443 So.2d 955 (Fla.1984), the Florida Supreme Court stated that the defendant’s credibility was subject to attack during closing argument, and any comments were harmless due to the overwhelming evidence. Where a defendant elects to testify in his defense, and in so doing, testifies contrary to the reasonable inferences to be drawn from the overwhelming weight of the other evidence, his credibility is properly subject to attack and comment by the prosecution.

Accordingly, we affirm the judgment of the trial court on the authority of Hall v. State and State v. Murray.

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


author: OTT, Chief Judge.

text:
    Johnell JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1858.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    As Amended July 23, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Appellant was charged with armed robbery and found guilty of the lesser included offense of robbery. The trial court refused appellant’s request for a jury instruction on theft. We reverse.

The trial court is required to instruct the jury on lesser included offenses necessarily included in the major offense charged. Brown v. State, 206 So.2d 377 (Fla.1968). It is impossible to prove robbery without proving theft. State v. Bruns, 429 So.2d 307 (Fla.1983). Because theft is not two or more steps from the offense appellant was convicted of, failure to give the requested instruction was not harmless error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Butler v. State, 379 So.2d 715 (Fla. 5th DCA 1980).

There was no evidence presented at trial that the value of the property taken was $100 or more. In such a case, petit theft is the next immediate lesser included offense of robbery. Bruns.

Because appellant was convicted of the lesser offense of robbery, on retrial he cannot be prosecuted for armed robbery. Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943); opinion After remand, State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944).

Appellant’s judgments and sentences for grand theft of an automobile and false imprisonment are affirmed.

REVERSED in part, and REMANDED for a new trial for the offense of robbery.

HOBSON and DANAHY, JJ., concur.


text:
    Tanya Jean FAIRCLOTH, Appellant, v. Walter Eugene FAIRCLOTH, Jr., Appellee.
    No. 83-1873.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Douglas H. Smith, Lake Alfred, for appellant.
    Lex Taylor, Lakeland, for appellee.
   CAMPBELL, Judge.

Appellant appeals from an order of the trial court terminating rehabilitative alimony. The alimony provision in the final judgment, which the court below terminated, provided that the husband “shall pay to the wife for rehabilitative alimony the sum of $4,000 to be páid at the rate of $200 per month.”

Appellant contends that the trial court erred in the final judgment by calling the lump sum award “rehabilitative alimony” rather than “lump sum alimony” for the purposes of equitable distribution. Even if we could, on this appeal, reach the final judgment provision, we would disagree with appellant. Even so, we conclude the trial judge acted properly in terminating the alimony and, therefore, we affirm.

Pursuant to section 61.08, Florida Statutes (1981), the trial court had discretion to choose between the two types of alimony. The testimony considered at trial and the language of the final judgment indicate that the trial judge deliberately chose the rehabilitative type of alimony. The lump sum nature of the award does not indicate that the lower court erroneously characterized the award as rehabilitative alimony. The purpose of the award, not the form, determines its character. See McCay v. McCay, 413 So.2d 814 (Fla. 1st DCA 1982). The trial court has discretion to determine how the payments will be made. § 61.08, Fla.Stat. (1981). Further, in regard to rehabilitative alimony, a lump sum award paid in installments has the same effect as an award of a fixed amount for a fixed period of time. (For example, a lump sum award of $4,800 in rehabilitative alimony, to be paid at the rate of $200 per month, has the same effect as $200 per month in rehabilitative alimony to be paid for two years.)

Appellant next claims that termination of her rehabilitative alimony, based upon her remarriage, was erroneous, citing Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980). While Frye states that rehabilitative alimony does not automatically terminate upon remarriage, it does not prohibit a trial judge from finding that remarriage or other changed circumstances of the recipient spouse has eliminated or altered the need for further rehabilitative alimony. Here, the trial judge properly made such a determination. The recipient spouse has remarried and obtained employment through the family business of her new spouse. She is no longer in the training position she had at the time of the final judgment, and she is making no attempt to improve her job skills aside from the job at the family business. Appellant has made no showing of her continuing need for rehabilitative alimony. Therefore, we find that the trial court properly terminated the award of rehabilitative alimony.

For the reasons stated above, we affirm.

■ SCHOONOVER and LEHAN, JJ., concur.


text:
    Gerald W. GETTEL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2066.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Ernest M. Jones, Jr., and Douglas A. Lockwood III, Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Defendant’s motion alleged ineffective assistance of counsel because his privately-retained attorney did not file a motion to suppress certain evidence used in the prosecution of defendant. We affirm the denial of defendant’s motion.

Defendant was convicted of twenty-eight counts of delivery of a controlled substance in violation of section 893.13, Florida Statutes (1981). Defendant’s conviction and sentencing were affirmed by this court on appeal. 442 So.2d 1011 (Fla.App.1983). Thereafter defendant filed the motion for post-conviction relief. After an evidentiary hearing on defendant’s allegations, the trial court denied the requested relief.

Defendant was a pharmacist who was convicted for allegedly filling forged prescriptions. The prescriptions in evidence at the trial were obtained from the pharmacy’s files by a deputy sheriff and an investigator from the Department of Professional Regulation, the state agency regulating pharmacies and pharmacists. The deputy and the investigator were investigating an informant’s claim that defendant had sold the informant drugs pursuant to the fraudulent prescriptions. They did not have a search warrant when they entered the pharmacy and seized the prescriptions, apparently relying upon section 893.07, Florida Statutes (1981), which requires every person who dispenses controlled substances to maintain certain records of each substance sold and to make those records “available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.”

In his motion for post-conviction relief, defendant alleged that his trial attorney should have filed a motion to suppress the seized prescriptions because the prescriptions were illegally seized. Defendant argues that Olson v. State, 287 So.2d 313 (Fla.1973), requires the suppression of the prescriptions. We disagree.

Trial counsel’s failure to file a motion to suppress the prescriptions was not ineffective assistance of counsel because we find that the motion to suppress would not, even if filed, properly have been granted. There was no prejudice to defendant in the failure to file such a motion.

In Olson, Board of Pharmacy agents and other law enforcement agents made a war-rantless seizure of pharmacy records pursuant to section 465.131, Florida Statutes (1969), which provided as follows:

465.131 Authority to inspect. — The Florida Board of Pharmacy and its duly authorized agents ... and the department of law enforcement and its duly authorized agents ... shall have the power to inspect ... any pharmacy ... for the purpose:
(1)of determining if any of the provisions of this chapter, or any regulation promulgated under its authority, is being violated, and
(2) of securing samples or specimens of any drug or medical supply ...; or
(3) of securing such other evidence as may be needed for prosecution under this chapter.

The supreme court in Olson held that the warrantless seizures authorized by section 465.131 were limited to those intended to enforce the provisions of chapter 465. The court stated that section 465.131 did not authorize warrantless seizures in aid of a prosecution under section 404.02, Florida Statutes (1969). The court held that the search in Olson was not connected with proceedings under chapter 465 but was in aid of a prosecution under chapter 404, and was, therefore, illegal.

If the Legislature sees fit to extend this warrantless search and seizure police power of the Florida Board of Pharmacy to aid in state prosecutions under other criminal statutes, apparently it may do so pursuant to the rationale of such cases as Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

Olson, 287 So.2d at 315.

Subsequent to Olson, the legislature did extend the warrantless search and seizure power by enacting section 893.07, Florida Statutes. Section 893.07 was enacted in 1973 as part of a major legislative revision of the Florida drug abuse laws. Ch. 73-331, § 7, Laws of Fla. Apparently no similar provision was contained in the Florida statutes at the time of the 1970 search in Olson. The 1969 statutes did contain record keeping and record inspection provisions similar to those later enacted in section 893.07, but those provisions limited the inspection authority to officers and employees of the Division of Health and the Department of Health and Rehabilitative Services. See §§ 404.05 and 404.06, Florida Statutes, (1969).

Unlike the prior provisions of sections 404.06 and 465.131, Florida Statutes (1969), section 893.07, Florida Statutes (1981), authorizes inspection by any law enforcement officer “whose duty it is to enforce the laws of this state relating to controlled substances.” Section 893.07 is part of the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, which is the chapter containing the law that defendant was convicted of violating.

AFFIRMED.

OTT, C.J., and SCHOONOVER, J„ concur.


text:
    Lewis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-2214.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Jerry Hill, Public Defender, and Deborah A. Adamson, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal in this case, we find the appellant has failed to demonstrate any reversible error. Therefore, we affirm the revocation of appellant’s probation and the resulting judgments and sentences.

However, the trial court failed to enter an order revoking appellant’s probation, and accordingly, we remand for entry of same. The trial court, on remand, should enter an order which conforms with its oral pronouncement that appellant violated three conditions of his probation. Dunlap v. State, 405 So.2d 796 (Fla. 2d DCA 1981).

CAMPBELL, A.C.J., and SCHOON-OVER and LEHAN, JJ., concur.


text:
    D.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2577.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Bennett H. Brummer, Public Defender and Mark King Leban, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

The adjudication of delinquency below is supported by one of the respondent’s confessions in evidence which — unlike Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), upon which she relies — is thoroughly inconsistent with both her exculpatory testimony at trial and her other extra judicial statements. State v. Frazier, 407 So.2d 1087 (Fla. 3d DCA 1982).

Affirmed.


text:
    Eric Paul DURCAN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-806.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Neil M. Nameroff, Miami, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Waters, 436 So.2d 66 (Fla.1983).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. John K. CHOATE, Jr. Appellee.
    No. 83-916.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Talburt, Kubicki & Bradley and Jon Der-revere, Miami, for appellant.
    Daniels & Hicks and Patrice A. Talisman, Carroll, Halberg & Meyerson, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Bankers & Shippers Insurance Co. v. Gonzalez, 234 So.2d 693 (Fla. 3d DCA 1970).


text:
    Gerald CIOLI, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1097.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Fine, Jacobson, Block, Klein, Colan & Simon and Linda Ann Wells, Miami, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Zalla v. State, 61 So.2d 649 (Fla.1952); Whitman v. State, 97 Fla. 988, 122 So. 567 (1920); State v. Saad, 429 So.2d 757 (Fla. 3d DCA 1983); Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982), rev. denied, 424 So.2d 761 (Fla.1982); State v. Fields, 390 So.2d 128, 129 (Fla. 4th DCA 1980); Trushin v. State, 384 So.2d 668, 676, 678 (Fla. 3d DCA 1980), aff’d, 425 So.2d 1126 (Fla.1982); State v. Newton, 328 So.2d 110 (La.1976).


text:
    Stephen BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1659.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Bennett H. Brummer, Public Defender, and May L. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Upon the authority of State v. Williams, 447 So.2d 356 (Fla. 1st DCA 1984), this action is remanded for a hearing to determine the defendant’s competency at the time of his trial in May, 1983. At oral argument it was learned that the three psychiatric experts who originally examined the defendant are still available to testify and the hearing should, therefore, contain their testimony as well as other evidence the state or the defense may offer. Should the trial court determine that the defendant’s competency in May, 1983, cannot be sufficiently established to protect his due process rights, the trial court should grant a new trial.

Remanded for further proceedings.


text:
    R.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1677.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See M.R. v. State, 399 So.2d 56 (Fla. 3d DCA 1981).


text:
    Lawrence C. ZAGLIN, Appellant, v. Carling DINKLER, Jr., as Personal Representative of the Estate of Cornelia D. Dinkler and Palm Bay Towers Corp., a Florida corporation, Appellees.
    No. 83-2406.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.

      Richard & Richard and Dennis Alan Richard, Miami, for appellant.
    Smith & Mandler and Mitchell W. Man-dler, Miami Beach, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The appellees have correctly conceded that the trial court erred in dismissing Counts II, III and IV of the appellant’s complaint, since it is abundantly clear that (1) the statute of limitations provides no basis for dismissal unless, which is not the case here, it affirmatively appears on the face of the complaint that the counts are limitations barred; (2) similarly, the dead man’s statute, § 90.602, Fla.Stat., cannot support a dismissal since a trial court, in considering a motion to dismiss, “is not permitted to speculate as to whether a plaintiff will be able to prove his allegations, rather a court is required to accept all well pleaded allegations contained in the complaint as true,” Raney v. Jimmie Diesel Corp., 362 So.2d 997, 998 (Fla. 3d DCA 1978); see also Wallace v. Gilbert, 250 So.2d 14 (Fla. 2d DCA 1971); and (3) each of the dismissed counts states a cause of action so as not to be subject on that ground to dismissal, much less, as occurred below, dismissal with prejudice. Accordingly, the order under review is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    A.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2452.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See J.M. v. State, 292 So.2d 398 (Fla. 3d DCA 1974).


author: FERGUSON, Judge.

text:
    Larry C. DAVIES, Appellant, v. Michael BOSSERT, Appellee.
    No. 83-2552.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.

      Ferrell & Ferrell, and Milton Ferrell, Miami, for appellant.
    Frigola, Devane & Wright and Alfredo Frigola, Marathon, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.

       Judge Nesbitt did not hear oral argument.

   FERGUSON, Judge.

This appeal questions the applicability of Section 770.01, Florida Statutes (1983)— which requires a complainant to give a defendant five days’ prior notice for the purpose of apology or retraction before an action for libel or slander may commence— where allegedly defamatory statements were made by a private citizen over an emergency channel of a citizen’s band radio.

The complaint alleges that defendant, while flying a small plane over a fishing area in the vicinity of Key West, broadcast-ed on Channel 19, VHF, that plaintiff, a lobster fisherman, was pulling a yellow and white buoy which belonged to another fisherman; that the broadcast was heard by hundreds of listeners; and that a third person told plaintiff that a number of listeners told him that they understood the broadcast to mean that plaintiff had been caught stealing.

The trial court granted defendant’s motion to dismiss on grounds that plaintiff failed to plead compliance with Section 770.01, which is a jurisdictional condition precedent to the right to maintain the action. Reliance was placed on Laney v. Knight-Ridder Newspapers, Inc., 532 F.Supp. 910 (S.D.Fla.1982) for the finding that “F.S. 770.01 requiring five days’ notice to the defendant before a libel or slander suit is brought applies to all defendants, ‘media’ and ‘non-media’.” We disapprove of the Laney holding on authority of Ross v. Gore, 48 So.2d 412 (Fla.1950), and reverse.

Although the issue before the Florida Supreme Court in Ross was different, the court unavoidably recognized that the statute had no application to non-media defendants. The main issue in Ross was whether the statute was discriminatory in that it permitted media defendants to avoid punitive damages by publishing a retraction or apology for libelous statements while not affording the same privilege to non-media defendants. The court did not hold, as does Laney, that Section 770.01 applies to media and non-media libelees alike, but recognized that the unambiguous language of the statutory condition precedent applies only to media defendants. Ross, 48 So.2d at 414-15.

In discussing Ross’ equal protection argument with respect to Section 770.02, which in 1950 referred only to newspapers and periodicals, the court reiterated that “[t]he provision for retraction is peculiarly appropriate to newspapers and periodicals, as distinguished from private persons.” 48 So.2d at 414. It reasoned further that Section 770.01, which requires a written notice only in suits against newspapers and periodicals, contains a valid classification which has a substantial relation to the purpose of the legislation. The basis for the classification was held to be, in essence, the public interest in the “free dissemination of news,” and the reasonable likelihood of occasional error as a result of the tremendous pressure to deliver the information quickly.

The earlier version of Section 770.01, which was construed in Ross v. Gore, referred only to publication of a libel in a newspaper or periodical. In 1976, the statute was amended to include reference to (1) “broadcast” (in addition to “publication”), (2) “other medium” (in addition to “newspaper and periodical”), and (3) “slander” (in addition to “libel”). Ch. 76-123, § 1, Laws of Fla. The following additions were also made to Section 770.02: “or broadcast station” in the section’s heading; “or broadcast” (as an addition to “article”); and a reference to correction, apology, or retraction in the case of a broadcast. Section 770.03 was also amended so as to refer to broadcasting stations in general and not just to radio broadcasting stations. Section 770.04 refers specifically to the civil liability of an “owner, licensee, or operator of a radio or television broadcasting station, and the agents, or employees of any such owner, licensee or operator.”

Since no other section of Chapter 770 uses the language “other medium” as found in Section 770.01, we can infer reasonably that the legislature intended that term to include television and radio broadcasting stations. There is no logical reason to suppose that Section 770.01 contemplates any form of medium not covered by other sections of the chapter. In the absence of legislative history, we can look to earlier enactments and other sections of the present Chapter 770 to determine the intent and meaning of the words “or other medium” in Section 770.01. See Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958) (if part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent); Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 791 (1979) (in determining whether Oregon’s retraction statute’s reference to “publisher” was limited to a media entity, court looked to the other provisions of the statute).

Further, because the legislature enacted only minor amendments to the statute, consistent with technological developments in mass communication media, it is presumed that it approved the interpretation given the earlier statute by the Florida Supreme Court. See Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc., 423 So.2d 500 (Fla. 3d DCA 1982), citing National Lead Co. v. United States, 252 U.S. 140, 40 S.Ct. 237, 64 L.Ed. 496 (1920) and State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973).

All of the Florida state court cases which interpret the notice requirement of Section 770.01 involve newspapers, periodicals or broadcasting companies (either radio or television). See, e.g., Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), rev. denied, 424 So.2d 763 (Fla.1982); Hulander v. Sunbeam Television Corp., 364 So.2d 845 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979).

Courts of several other jurisdictions have applied the same interpretation as the Florida Supreme Court to similar state retraction statutes by limiting the application of the statutes to news media defendants. The rationale is also the same. See Alioto v. Cowles Communications, Inc., 519 F.2d 777 (9th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 259 (1975) (statute’s requirement that a retraction be demanded does not apply to magazines which have more time than newspapers and broadcast media to ascertain the truth of accusations before publishing them; California legislature which had amended statute twice so as to encompass radio and then television had not seen fit to amend again to extend coverage explicitly to magazines); Fifield v. American Automobile Association, 262 F.Supp. 253 (D.Mont.1967) (retraction statute strictly interpreted to apply only to media specifically enumerated in statute, and not to books; news dissemination media, unlike non-media defendants, have the capability of publishing a retraction which has an almost instant countering effect); Comer v. Louisville & N.R. Co., 151 Ala. 622, 44 So. 676 (1907) (publishers of newspaper are in the class which the retraction statute was designed to protect but advertisers who prepare an article and pay for its publication are excluded); Field Research Corp. v. Superior Court, 71 Cal.2d 110, 77 Cal.Rptr. 243, 453 P.2d 747 (1969) (statute requiring notice to libel defendants does not apply to non-media defendants who are not under the time pressures imposed by publication or broadcast deadlines, are not especially susceptible to unwarranted defamation suits and claims for excessive damages, and are not in a position to publish widely-circulated, effective retractions); Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 216 P.2d 825 (1950), appeal dismissed, 340 U.S. 910, 71 S.Ct. 290, 95 L.Ed. 657 (1951) (same); Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979) (retraction statute not applicable to defendants who wrote defamatory letters published in a newsletter; same rationale as in Werner).

Reversed and remanded with instructions to reinstate the complaint.

      . See Rahdert and Snyder, Rediscovering Florida’s Common Law Defenses to Libel and Slander, 11 Stetson L.Rev. 1, 20-22 (1981) noting that the defenses set forth in Chapter 770 apply principally to news media defendants in libel and slander actions.


text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant, v. James B. WILSON, et al., Appellees.
    No. 83-2842.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Roy D. Wasson, Miami, for appellant.
    Pyszka & Kessler and John C. Hamilton, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Wilson was injured by the negligence of Timmerman in operating an automobile. He filed an action against Timmerman, and Colonial Penn and Old Republic, who were the liability insurers of the Timmermans. Old Republic answered denying coverage. Wilson subsequently moved for summary judgment on the coverage issue. The day before the hearing on that motion Old Republic filed a motion to continue the hearing and a motion for leave to file a cross-claim for reformation of the insurance policy on the ground of mistake. Also on that date, the insurer filed an affidavit in opposition to the plaintiff's summary judgment motion in which it was stated that the automobile insurance policy contained an error which related to the covered automobiles. The trial court denied the motions and entered summary judgment for Wilson determining that Old Republic had in effect an insurance policy providing coverage to the Timmermans.

Colonial Penn and Timmerman then sought leave to file cross-claims against Old Republic alleging that Old Republic was obligated to contribute seventy-five per cent of any judgment in Wilson’s favor. The circuit court granted leave to file these cross-claims. Old Republic answered and filed a cross-claim in which it sought reformation of the policy and restitution under the theory of unjust enrichment. Ultimately, the circuit court granted summary judgment in favor of Colonial Penn and Tim-merman on their cross-claims. Timmer-man’s negligence and the amount of damages were agreed to and thus final judgment was entered awarding Wilson $137,-500 of which Old Republic was obligated to pay $103,125. We reverse.

Leave to amend should be freely given when justice so requires, Fla.R.Civ.P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment. Haag v. Phillips, 333 So.2d 507 (Fla. 2d DCA 1976). Old Republic’s cross-claim for reformation of the insurance policy, if meritorious would have defeated Wilson’s motion for summary judgment. Consequently, the denial of Old Republic’s motion for leave to file a cross-claim was error.

Since the order denying the motion for leave to assert a cross-claim must be reversed, all subsequent rulings are vacated and the ease is remanded for further proceedings.


text:
    Edward J. MLASKA, Appellant, v. Inez MLASKA, Appellee.
    No. 83-2926.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Harold M. Braxton, Miami, for appellant.
    Monroe Dixon, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the judgment appealed in which the trial court restored the wife as sole owner of a home which was owned by her before the marriage. The court found that no gift was intended when she quit-claimed the property to herself and husband as tenants by the entireties. See Ball v. Ball, 335 So.2d 5 (Fla.1976) (special equity is created by a showing that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source unconnected with the marital relationship in the absence of contradictory evidence that a gift was intended); Agudo v. Agudo, 449 So.2d 909 (Fla. 3d DCA 1984) (same). The trial court’s determination is supported by facts in the record and therefore will not be disturbed on appeal. See Marsh v. Marsh, 419 So.2d 629 (Fla.1982).

We remand, however, for such further proceedings as are necessary to relieve the now ex-husband of any liability on the new note and mortgage which encumbers the property.

Affirmed in part and remanded with directions.


text:
    ZILBER TAXICAB SERVICE, INC., a Florida corporation, and Jean Surgern Dark, Appellants, v. The STATE of Florida, DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, Appellee.
    No. 84-91.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.

      Joel H. Brown, Robert Carirossi, Miami, for appellants.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Jr., Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Because the operative facts in the present case are indistinguishable from those in Department of Transportation, State of Florida v. General Portland, Inc., 443 So.2d 276 (Fla. 3d DCA 1983), we reverse upon that authority.

Reversed.


author: GLICKSTEIN, Judge.

text:
    MULTICON CONSTRUCTION CORPORATION and Multicon Developments, Inc., Appellants, v. E.C. STOKES MECHANICAL CONTRACTORS, INC., Appellee.
    No. 83-837.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Paul A. Turk, Jr., of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellants.
    Ronald Sales and Joel M. Weissman of Sales & Weissman, P.A., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment in favor of the plaintiff/appellee in the sum of $41,380.00. We reverse and remand with direction to enter a final order of dismissal to plaintiffs complaint for failure to prosecute.

The sole issue here is whether the trial court erred in reinstating the plaintiffs action after it had been dismissed pursuant to Florida Rule of Civil Procedure 1.420(e), which provides:

(e) All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has- occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

At oral argument, we requested supplemental briefs from the parties for the purpose of determining whether there was a Federal Rule of Civil Procedure from which the foregoing rule had been derived; and if so, what decisions had been rendered upon facts similar to the present case. We did so because in matters involving one of the Florida Rules of Civil Procedure, we earnestly hope that trial lawyers will make known to trial judges any relevant decisions emanating from a corresponding Federal rule.

In this case, there is no corresponding Federal rule. The only mention in Federal Rule of Civil Procedure 41 of dismissal for failure to prosecute appears in Rule 41(b), which states:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.

In the present case, there was an unfortunate series of foul-ups by someone in the office of the plaintiff’s attorneys. When appellants’ motion to dismiss arrived, no response was made to it because it was believed that the motion affected some other cáse. At another point, it was admitted that somehow the office file for this case had been lost. Accordingly, we have a double-pronged reason for reversing the trial court’s reinstatement of the action on motion for rehearing after initially dismissing it. First, there was non-compliance with the requirement that there be a response to the motion, showing good cause, in writing, at least five days prior to hearing, for dismissing the action. Second, good cause was never shown — verbally or in writing.

We close with the final observation that the trial court subsequently granted rehearing and reinstated the action based on Ravel v. Ravel, 326 So.2d 223 (Fla. 2d DCA 1976) — which held that Florida Rule of Civil Procedure 1.420(e) had no application after a final judgment has been entered in a case — apparently concluding that the Ravel decision should be extended to the present situation involving a partial summary judgment, rendering Rule 1.420(e) inapplicable. However, there had been no final judgment entered in this matter, and we conclude that the Ravel rule should not be extended to partial summary judgments on a single issue. The existence of such a partial summary judgment as occurred in this case should not do away with the requirement that a case be prosecuted toward final judgment.

BERANEK and WALDEN, JJ., concur.


author: PER CURIAM. LETTS, Judge,

text:
    SUN HARVESTERS, INC., Appellant, v. ENRO MFG., INC., Appellee.
    No. 83-1184.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellant.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980).

ANSTEAD, C.J., and GLICKSTEIN, J„ concur.

LETTS, J., concurs specially with opinion, with which GLICKSTEIN, J., also concurs.

LETTS, Judge,

specially concurring:

Ever since the Supreme Court issued Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979) I have been fascinated by the apparent tension between that decision and Florida Appellate Rule 9.200(f)(2).

In the instant case, the appellant has not favored us with a transcript of the vital hearing after which the final judgment of default was entered. Applegate v. Barnett Bank, supra, unequivocally holds: no adequate record, no reversal. However, Rule 9.200(f)(2) says if the record is incomplete, the reviewing court “shall” direct its completion and provide an opportunity to supplement it.

The Supreme Court obviously saw no tension for it ignored the rule altogether in Applegate. However, I think the Supreme Court was correct and the comment to the rule is helpful to resolve my uncertainty.

The comment notes that the rule “is not intended to cure inadequacies in the record which result from the failure of a party to properly make [one].” What is intended is that if an adequate record does exist and the appellant has simply not brought it up to us, an opportunity should be afforded to cure such an omission.

In the case before us now the appellant failed to make an adequate record so he is out of luck.


text:
    Michael G. VUOLO, Appellant, v. Charlotte A. VUOLO, Appellee.
    No. 83-2056.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Alan W. Kaback, Coral Springs, for appellant.
    Charles T. Whitelock, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

ANSTEAD, C.J., and LETTS and GLICKSTEIN, JJ., concur.


text:
    ERIE WINDS, N.V. and Candy Store Corporation, a Florida corporation, Appellants, v. CRAB POT OCEANSIDE, INC., a Florida corporation, d/b/a Tobago Restaurant, Appellee.
    No. 83-2697.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      William F. Zamer of William F. Zamer, P.A., Fort Lauderdale, for appellants.
    Jay A. Schwartz of Grief & Schwartz, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellants seek review of several orders of the trial court striking appellants’ pleadings and entering defaults as sanctions for a multitude of procedural violations on the part of appellants.

Without detailing all of the facts, suffice to say that the record supports the trial judge’s finding of a long, consistent failure of appellants to timely plead, submit to discovery, or attend hearings sufficient to justify the harsh action taken. Such action is discretionary and precludes appellate interference absent an abuse thereof. As the supreme court recently stated in Mercer v. Raine, 443 So.2d 944 (Fla.1983):

Thus, to justify reversal, it would have to be shown on appeal that the trial court clearly erred in its interpretation of the facts and the use of its judgment and not merely that the court, or another fact-finder, might have made a different factual determination. 443 So.2d at 946.

Once again the supreme court has applied the oft described test set forth in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), to determine the parameters of the trial court’s discretion in granting sanctions:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. 443 So.2d at 946.

Accordingly, we affirm the orders appealed from.

AFFIRMED.

DOWNEY, DELL and GLICKSTEIN, JJ., concur.


text:
    George MAY, Michael May, Sr., M’s Goodland, Inc., I-95 Executive Center, Inc., Cypress Star, Inc., MGA Land Sales, Inc., Executive 100, Inc., Mayland, Inc., Equity 22, Inc., and Richland 4, Inc., Florida corporations, Petitioners, v. Grant S. PROBY and Betty L. Proby, his wife, and Allen May, Respondents.
    No. 84-180.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Don Pickett of Brown & Pickett, West Palm Beach, for petitioners.
    No appearance by respondents.
   PER CURIAM.

We treat this non-final appeal as a Petition For Common Law Certiorari. Upon consideration, said Petition is DENIED.

ANSTEAD, C.J., and HERSEY and WALDEN, JJ., concur.


text:
    Sharon R. SKELTON, Appellant, v. Ronald L. SKELTON, Appellee.
    No. 84-330.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Fariba N. Komeily of McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
    Noel Bobko, Palm City, and Jeffrey F. Thomas of Thomas & Thomas, Boca Raton, for appellee.
   PER CURIAM.

We affirm the trial court’s temporary order on child visitation which is the subject of this appeal. See Henderson v. Henderson, 226 So.2d 699 (Fla. 4th DCA 1969), and Herd v. Herd, 391 So.2d 312 (Fla. 4th DCA 1980).

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Robert James LITTS, Appellant, v. STATE of Florida, Appellee.
    No. 84-814.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Robert James Litts, Sneads, pro se appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Christopher v. State, 416 So.2d 450, 452 (Fla.1982).

ANSTEAD, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.


text:
    Elizabeth GLAESER, Appellant, v. David H. GLAESER, Appellee.
    No. 83-1077.
    District Court of Appeal of Florida, Second District.
    May 9, 1984.

      Sara W. Rahdert of Gulfcoast Legal Services, Inc., St. Petersburg, for appellant.
    Peter H. Dubbeld of Riden, Watson & Goldstein, P.A., St. Petersburg, for appel-lee.
   LEHAN, Judge.

The former wife appeals from the trial court’s order which allowed social security disability payments to her, by reason of the former husband’s disability, to be set off against the former husband’s past due alimony obligations and which denied her motion for contempt. We affirm the trial court’s order finding no contempt but reverse the order to the extent it permitted the husband to unilaterally set off those social security payments against his alimony obligations.

When the parties’ marriage of twenty-two years was dissolved, the trial court incorporated into the final judgment the parties’ settlement agreement. That agreement required the husband to pay the wife $147.00 every two weeks for support and maintenance until the wife’s death or remarriage. The husband complied with those terms for approximately eleven years. However, in mid-1981, the husband unilaterally reduced the alimony payments by the amounts he thought the wife was receiving from social security by reason of his disability. The wife filed a motion for contempt, alleging a $5,920.65 arrearage, which had increased to $6,551.65 by the date of the contempt hearing.

The parties present several issues on appeal, two of which merit discussion. First, whether the trial court correctly denied the wife’s motion for contempt. Second, whether the trial court correctly allowed the husband to set off the social security disability payments to the wife on his account against his alimony obligation.

The trial court did not abuse its discretion by refusing to hold the husband in contempt. See Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); English v. English, 117 So.2d 559 (Fla. 3d DCA), cert. denied, 122 So.2d 407 (Fla.1960). In English, the Third District Court of Appeal said:

One method, in fact the most usual remedy for enforcement of a decree for alimony, in event of default, is by a contempt proceeding. But proof of unpaid arrears of alimony will not entitle an applicant, as a matter of right, to an order of commitment of a person for contempt, as such an application is addressed to the discretion of the court. A respondent to a rule to show cause will be adjudged in contempt when the court determines that the arrearage in alimony is the result of a willful failure to comply with the order for its payment.

English, 117 So.2d at 561. See also Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939).

However, we conclude that the trial court erred in allowing the husband to unilaterally use the amount of those social security disability payments as a set-off against his past due alimony. A “set-off against alimony payments is generally frowned upon.” Chappell v. Chappell, 253 So.2d 281, 283 (Fla. 4th DCA 1971). A party shall not be permitted to set off against an alimony obligation amounts paid by that party “in the absence of compelling equitable criteria and considerations to the contrary.” Id. at 287. We find no compelling considerations requiring a set off in this case.

Chappell disallowed a husband’s attempt to set off against his alimony obligation monies paid by him on a joint and several income tax liability. Cohen v. Cohen, 246 So.2d 581 (Fla. 3d DCA 1971), held that a deceased father’s estate could not set off against past due child support payments social security death benefits paid to a child. Cohen reasoned that if a set-off of social security benefits had been intended, provision therefor should have been made in the settlement agreement which required child support. Similarly, in the case before us, if the intentions of the parties had been to permit a set-off for social security payments, the settlement agreement should have so provided. See Craver v. Craver, 649 S.W.2d 440 (Mo.1983) (refusing to permit, as a matter of law, a set-off of social security payments to the wife drawn on the husband’s account against support payments owed by the husband).

We are cognizant of the husband’s argument that the wife waived her right to full alimony by not objecting to the reduced payments for approximately fifteen months. See Stephenson v. Stephenson, 52 So.2d 684 (Fla.1951) (recognizing waiver by acquiescence as a possible defense to an action for past due alimony but finding no waiver under the facts presented). But waiver is the intentional relinquishment of a known right. The facts of this case do not establish an intentional relinquishment of the wife’s right to alimony. The evidence shows no more than a delay in the wife’s efforts to obtain full alimony by reason of her sympathy for the husband on account of his recent operation and ill health. The wife’s delay in filing the motion for contempt did not constitute laches. The husband did not establish any injury or prejudice caused by the delay. See Phillips v. Adams, 339 So.2d 665 (Fla. 4th DCA 1976).

No issue is before us as to whether future alimony obligations should be modified. No motion for modification was filed by the husband.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


author: RYDER, Judge.

text:
    David Carol LOLLIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1644.
    District Court of Appeal of Florida, Second District.
    May 9, 1984.

      Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

David Lollis appeals an order revoking his probation and a subsequent order sentencing him to the state prison. Lollis argues that the circuit court did not have jurisdiction to enter the order revoking probation because, pursuant to the provisions of section 958.10(2), Florida Statutes (1979), he was on parole when he left prison on August 24,1982; therefore, only the Parole and Probation Commission had jurisdiction to return him to prison. We agree and reverse, but certify a question to the supreme court.

On April 21, 1981, an information was filed charging Lollis with grand theft in violation of section 812.014, Florida Statutes (1979). Lollis pled guilty to this charge on July 7, 1981, and on October 28, he was adjudicated guilty and sentenced (as indicated by the written judgment and sentence) to “two years state prison under the Youthful Offender Act to be followed by two years probation.” On August 24, 1982, after serving approximately ten months in prison, Lollis was released on parole.

Subsequently, on May 27, 1983, an affidavit of violation of probation was filed alleging Lollis violated one condition of his probation on three different occasions. On June 9, a warrant was issued charging Lollis violated his parole by committing the same acts which were alleged in the affidavit of violation of probation. Thereafter, a hearing on the violation of probation was held on July 18, 1983, and after evidence was heard, the trial court revoked Lollis’ probation and sentenced him to five years in state prison with credit for time served. Lollis then filed timely notice of appeal.'

Upon examination of the record on appeal and the arguments espoused by both parties, we agree with Lollis’ contention that the Fourth District’s decision in Clem v. State, No. 81-2243 (Fla. 4th DCA Aug. 31, 1983) (8 FLW 2135), is dispositive in his favor as to the jurisdictional issue. First, Lollis is not precluded from raising the jurisdictional argument for the first time on appeal because the lack of a circuit court’s subject matter jurisdiction involves fundamental error. Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979). Accord, Clem. Second, with respect to the merits of Lollis’ contention, the Clem court explained:

A youthful offender released from prison by parole or by accumulation of statutory gain time allowances must remain in a community control program for a maximum of two years. § 958.10. The agreement governing the release sets forth the terms governing the youthful offender’s stay in the community control program. § 958.10(2). If the youthful offender violates the terms of his release agreement (and thereby of his community control program), his release on parole is subject to revocation. § 958.10(2). Violation of the terms of the agreement does not result in a return to prison unless that violation also constitutes a violation of a criminal statute. § 958.-10(3).

The court further held that there “can never be a probationary period following a period of imprisonment for a youthful offender committed to the Department of Corrections pursuant to section 958.05(2) because the sentence that section authorizes includes a term of service in a community control program.” The court concluded that section 958.14, which subjects a youthful offender to probation revocation proceedings, does not apply to youthful offenders serving in a community control program begun pursuant to section 958.10 after a period of imprisonment. Accordingly, because we hold Lollis was serving in a community control program after a period of imprisonment, we further hold that only the Parole and Probation Commission had authority to return Lollis to prison for violating the terms of his release agreement.

Therefore, we VACATE that part of the original sentence ordering probation, REVERSE the order revoking probation and the order imposing the sentence appealed from. We REMAND the cause to the circuit court with directions that it transfer custody of Lollis to the Commission for further proceedings. We need not address Lollis’ other contention in this appeal because of our disposition of the case.

Finally, we wish to join our sister court in certifying the following question to be one of great public importance:

WHEN A YOUTHFUL OFFENDER HAS BEEN SENTENCED PURSUANT TO SECTION 958.05(2), FLORIDA STATUTES (1979), DOES THE CIRCUIT COURT HAVE JURISDICTION TO ENTER SANCTIONS AGAINST THE YOUTHFUL OFFENDER FOR VIOLATING THE TERMS OF HIS COMMUNITY CONTROL PROGRAM OR DOES JURISDICTION OVER THE VIOLATION LIE EXCLUSIVELY IN THE PAROLE AND PROBATION COMMISSION?

REVERSED and REMANDED with directions.

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

      . Consistent with our decision in Riley v. State, 407 So.2d 967 (Fla. 2d DCA 1981), we construe the trial court’s imposition of probation to mean that Lollis was to be placed in a community control program because the trial court referred to the Youthful Offender Act, which is the designation used by the Act for supervision after incarceration of a juvenile. § 958.05(2), Fla. Stat. (1979).


text:
    Gerald Jerome RANKIN, Appellant, v. SUNSHINE JR. STORES, INC., et al, Appellees.
    No. AU-399.
    First District Court of Appeal of Florida, First District.
    April 18, 1984.
    Gerald Jerome Rankin, pro se.
    Joe J. Harrell, Pensacola, for appellees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1980); Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983). It is unnecessary for the court to rule on appellees' motion to strike appellant’s brief.

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