
    Jeffrey Wayne PALMER, Appellant/cross appellee, v. Kelly L. DAVIES, Appellee/cross appellant.
    Nos. 90-3170, 91-0210.
    District Court of Appeal of Florida, Fourth District.
    July 10, 1991.
    R. Fred Lewis, Magill & Lewis, P.A., Miami, for appellant/cross appellee.
    Michael A. Viscomi, Michael A. Viscomi, P.A., West Palm Beach, for appellee/cross appellant.
    Robert A. Butterworth, Atty. Gen., and Craig B. Willis, Asst. Atty. Gen., Tallahassee, for intervenor-State of Fla.
   PER CURIAM.

This is a timely appeal and cross appeal from a final judgment and amended final judgment awarding compensatory and punitive damages to the appellee.

We have considered all of the appellate points presented on both the main and cross appeal and find no reversible error demonstrated except as to the failure of the trial court to apportion the punitive damages between appellee and the Public Medical Assistance Trust Fund as provided in section 768.73(2), Florida Statutes (1989). That statute requires that punitive damages awarded to a party in a personal injury or wrongful death action be apportioned 40% to the claimant and 60% to the Public Medical Assistance Trust Fund. The parties concede the statute, if constitutional, is applicable here and agree that the constitutional question need not be reached in this case. However, if the Supreme Court of Florida subsequently determines the statute to be unconstitutional, the parties have agreed to comply with that judgment ruling.

We note that the amended appeal is from an amended judgment of the trial court apportioning the punitive damages award. However, the judgment was entered after the original judgment was on appeal to this court. Thus, the trial court was without jurisdiction, absent a relinquishment from this court.

Accordingly, the amended judgment is reversed for lack of jurisdiction in the trial court. The original judgment is affirmed in all respects except as to the award of punitive damages. As to said award the trial court is directed to modify the original judgment so as to comply with the aforementioned statutory requirement for apportionment.

DOWNEY, GUNTHER and POLEN, JJ., concur.  