author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Thomas Miacle STANLEY, By and Through his parents and natural guardians, Lynn W. STANLEY and Miacle I. Stanley, and Lynn W. Stanley and Miacle I. Stanley, individually, Appellants, v. UNITED STATES FIDELITY & GUARANTY CO., St. Vincent’s Medical Center, Florida Physicians Insurance Reciprocal, J. Eugene Glenn, M.D., P.A., James Eugene Glenn and the Florida Patient’s Compensation Fund, Appellees.
    No. AH-500.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 8, 1983.

      James T. Terrell of Brown, Terrell & Hogan, P.A., Jacksonville, for appellants.
    James C. Rinaman, Jr., and Nick V. Pu-lignano, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees James Eugene Glenn, J. Eugene Glenn, M.D., P.A., and Fla. Physicians Ins. Reciprocal.
    James H. McCarty, Jr., of Boyd, Jener-ette, Leemis & Staas, P.A., Jacksonville, for appellees U.S. Fidelity & Guar. Co. and St. Vincent’s Medical Center.
    L. Haldane Taylor, Jacksonville, for ap-pellee Fla. Patient’s Compensation Fund.
   ROBERT P. SMITH, Jr., Chief Judge.

Plaintiffs appeal from a judgment entered upon a jury verdict for the defendants in this medical malpractice action. Plaintiffs’ claim against the obstetrician and hospital, on account of retardation and cerebral palsy suffered by infant Tommy Stanley since birth, was that the medical defendants negligently failed to diagnose and effectively remedy the infant’s oxygen deprivation just before birth. The defendants denied that and advanced the theory, supported by expert testimony and other proof, that the child’s abnormalities are congenital.

Of plaintiffs’ 12 points on appeal, few have substance but one is decisive. We hold that the jury’s verdict for the defendants was tainted by evidence they improperly adduced to show that the special therapy and education required by the minor plaintiff, as a result of his condition however caused, is available to his family from charitable or governmental sources at little or no cost. The judgment must therefore be reversed and the case remanded for a new trial.

The collateral source doctrine of course “permits an injured party to recover full compensatory damages from a tort-feasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor.” A corollary of that rule of recovery is one of evidence, excluding proof of collateral payments or other benefits that cannot reduce the tort-feasor’s responsibility even though they may in fact inure to plaintiff’s benefit. Eg, Paradis v. Thomas, 150 So.2d 457 (Fla. 2d DCA 1963).

Despite a defendant’s verdict on liability, formally representing that the jury never reached damage issues, the erroneous admission of collateral source evidence has been held in certain circumstances to require a new trial because the evidence had a highly prejudicial effect. E.g., Cook v. Eney, 277 So.2d 848, 850 (Fla. 3d DCA 1973), cert. den., 285 So.2d 414 (Fla.1973) (“The admission of evidence of receipt of [social security and workers’ compensation] benefits may indeed have led the jury to believe that appellant was trying to obtain a double or triple payment for one injury.”); Williams v. Pincombe, 309 So.2d 10,11 (Fla. 4th DCA 1975) (“Such evidence [of welfare benefits] had the tendency to confuse and mislead the jury on the issue of the defendant’s liability and its admission by the trial court constituted error prejudicial to the plaintiff.”)

Proving damages, plaintiffs’ counsel put on testimony by Dr. Buda, a pediatric neurologist, that the Stanley child would need physical therapy for life at a cost of up to $120 per month and speech therapy for several years at a cost of up to $120 per week. Over plaintiffs’ objection, the defendant physician’s counsel cross-examined Dr. Buda concerning the availability of the necessary treatment at reduced cost, or no cost at all, through local charities, public schools, and the like. In the main, Dr. Buda stuck to his opinion that private therapy was the better course, because of its quality and its assured availability, but to some extent he conceded the availability and usefulness of those local publicly or charitably funded programs. These excerpts fairly summarize the cross-examination questions and answers:

Q. And Baby Stanley has been availing himself of the services of that Cerebral Palsy Clinic on four or five or six occasions with a grown-up, so far?
A. He has been seen in the clinic.
Q. How is that organized? It’s located at the Nemours Hospital, the old Hope Haven Hospital?
A. For the moment, but I’m afraid it’s going to have to move because of space problems.
Q. How is it sponsored?
A. The Cerebral Palsy Foundation that allocates money to the communities.
Q. A national health organization?
A. I believe so. I really couldn’t make an accurate statement as to where its funding comes from.
Q. Do they get money from other organizations, like the March of Dimes and people like that?
A. I wouldn’t know. I don’t know how they get their funds.
Q. It operates in the community and other communities — what other kind of funding do they have, do you know?
A. I don’t know how they are funded.
Q. The Cerebral Palsy Clinic is available to the public and available to Mr. and Mrs. Stanley to provide monitoring of his condition and recommend treatment and make continuing diagnosis of the baby as he grows up?
A. Right.
Q. There would be no charge for those services?
A. I don’t know — when you say no charge, whether they have a sliding scale or what.
Q. Does the Speech and Hearing Clinic have speech therapy like that you suggest Baby Stanley would need?
A. It depends on the Speech and Hearing Clinic. Some of them are funded and some of them are not.
Q. Well, is this one in Jacksonville funded?
A. The one I know best is the one on Laura Street. That is not funded.
Q. Are there others in town?
A. One can get speech therapy at other agencies, but as far as the Speech and Hearing Clinic, the one I know of on Laura Street, that is not funded.
Q. These are public health agencies and public health facilities that are available to the general public. They are not welfare or anything like that. They are there to provide a service for people who need that particular kind of service?
A. Right.
Q. And those programs are available to the public for nothing or for some sort of sliding scale?
A. It mainly depends on the parents’ income level, whether or not they qualify for completely funded program or whether they have a bill based on a sliding scale.
Q. Okay. And the same would be true on physical therapy that you told us about?
A. Sure.
Q. The same would be true as to educational facilities for special children’s care, which is available through the public school system of Duval County?
A. Right. The public school system does have some special education schools.
Q. Right. And these schools are dedicated to taking care of cerebral palsy babies and other kinds of children who are growing up with disabilities?
A. Yes.
Q. That are the same as, not as bad as or worse than Baby Stanley?
A. Yes sir, disability similar to the Stanley baby.

Again, plaintiffs’ counsel sought to prove through Dr. Reynolds, a clinical psychologist, that because of cerebral palsy and related disabilities the Stanley child would require “learning stimulation” for several hours a week, outside of normal school hours, by trained therapists. This the witness testified would cost $25 to $35 per hour. Again on cross-examination the defendant physician’s counsel showed that local charitable sources could provide the needed special educational care:

Q. In Jacksonville, Doctor, the Cerebral Palsy Clinic, the Speech and Hearing Clinic and various schools available in the Duval County School System as well as ... various foundations and health groups provide the sort of services that Tommy needs ...; is that correct? ...
A. That is correct. There are facilities available.
Q. And those facilities to the Stanley family would be available free of charge or at nominal charge?
A. They are generally funded by governmental sources or—
Q. And also foundations like Nemours Foundation?
A. That’s correct.
Q. And also foundations like the March of Dimes and the Cerebral Palsy Foundation and groups like that?
A. That is correct.
Q. And that is what they are there for is to take care of people who have these problems, really, regardless of their financial resources; is that right?
A. That’s correct.
Q. There are specialists there who specialize in just people like Tommy Stanley?
A. That’s correct.
Q. And specialists around this community who provide their services to those clinics even though they are in private practice and doing their own private money-making work in the regular life?
A. Well, they have people on staff. They have various specialties on staff in some regards.
Q. They have consultants who volunteer their time to help out the full-time staff, is that correct, different specialists?
A. There are such individuals, yes.
Q. And that has been done for years and years and years in Jacksonville?
A. So far as I know.

On redirect examination, Dr. Reynolds confirmed that “Government programs come and they go,” depending on funding.

The questioning of Drs. Buda and Reynolds about governmental and charitable sources of treatment was explained by the defendant physician’s counsel at the outset of his summation to the jury. He argued, without further objection by plaintiffs’ counsel:

That is this question of sympathy. This question of the availability of services in the community, which I tried to bring out, because I knew [you] . .. had no familiarity whatever with any of that and knew nothing about the Cerebral Palsy Clinic, the Speech and Hearing Clinic ..., the Nemours Foundation ..., the March of Dimes and Birth Defects. ... That was not to show that you should not award damages to Tommy. ... It was so that you won’t go back into that jury room feeling a burden that this poor baby, whatever his problem is and ... is going to be — can’t be taken care of by his family and can’t be taken care of in this community unless you give him the money.... I hope that I have shown you that Tommy can be taken care of in our community and that money damages aren’t the key to whether or not he can be taken care of. I have shown you that there are facilities for that purpose which is not to say ... that if you find that Dr. Glenn or the hospital were guilty of negligence and that negligence caused Tommy Stanley’s problems, that you should not find damages for Tommy Stanley because of those services.

This cross-examination and argument offended the policies reflected in the collateral source rule and in .the precedents enforcing that rule. If plaintiffs were entitled tb recover at all, they were entitled to recover the reasonable cost or value of the therapy and education indisputably required, without reduction in the verdict on account of the family’s access to charitable or governmental programs at less cost, or no cost. The cross-examination and testimony showing those alternative programs should have been excluded.

This principle of law exists independently of section 768.50, Florida Statutes (1981), which codifies the collateral source rule for some purposes, and for those purposes only, in medical malpractice cases. That statute requires the damages assessed by medical malpractice verdicts to be reduced “by the total of all amounts paid to the claimant from all collateral sources which are available to him.” Sec. 768.50(1), Fla.Stat. (1981). But “collateral sources” are particularly defined “[fjor purposes of this section” to mean “any payments made to the claimant, or on his behalf, by or pursuant to” specified financial sources including, most arguably pertinent to this case, “public programs providing medical expenses, disability payments, or other similar benefits.” Sec. 768.50(2)(a), Fla.Stat. (1981).

For two reasons the statute is inapplicable here. First, the statute addresses only evidence of “payments” to claimant or for his benefit; the statute does not address in-kind benefits that claimant may have received, such as medical treatment, special education, or therapy professionally administered to him either by volunteers or by paid staff of a governmental or charitable institution. The statutory scheme being that the trial judge will simply tally the liquidated “payments” made to or for claimant, and subtract the total from the verdict upon entering judgment, the difficulty of evaluating in-kind collateral benefits may have seemed to the legislature reason enough to exclude in-kind benefits from the calculations reducing claimant’s recovery. At any rate unliquidated in-kind benefits were excluded.

Second, the statute addresses only those collateral benefits that “have been paid” to claimant at the time of the post-verdict calculation; the statute does not require the court to predict and tally future collateral benefits, so to subtract them from the verdict. That omission, too, may reflect a legislative judgment that calculating future collateral benefits is difficult, if not impossible. At any rate all problems concerning future benefits were decisively avoided, for the 1977 legislature struck from the 1976 statute its references to amounts “to be paid” and amounts that “will be paid” from collateral sources. Ch. 77-64, § 7, Laws of Fla., amending sec. 768.50(1), Fla.Stat. (1976 Supp.).

Thus, future governmental and charitable services to the Stanley child, in the form of low-cost special education, therapy, and the like, are not “collateral source” payments within the meaning and application of section 768.50. It does not follow, however, that they are not collateral source benefits excludable from evidence under the common law rule. There is no reason to suppose that the legislature, enacting section 768.50, intended to codify an exclusive rule and to circumscribe its common law effect, so now admitting evidence during a conventional medical malpractice trial of collateral source benefits of a type the statute does not designate for post-verdict calculation. For example, we doubt that the statute intends, by not including a neighbor’s gift of personal nursing care on the list of “collateral sources,” that the neighbor’s kindness should now go to reduce awardable damages for “the reasonable value or expense of medical and nursing care and treatment necessarily or reasonably obtained by (claimant) in the past or to be so obtained in the future.” Fh.Std.Jury Instr. (Civ.) 6.2c.

We now turn to the question of whether this cross-examination was foreclosed by the collateral source rule conceived independently of section 768.50. The collateral sources proved in this case — Jacksonville’s Cerebral Palsy Clinic, Speech and Hearing Clinic, and March of Dimes agencies — seemingly are available, at least as far as their resources go, to any and all members of the public. In this general availability those benefits are different from collateral benefits that are very tangibly paid for or earned by the recipient, such as insurance, disability income, workers’ compensation, Social Security, Medicare and the like. The idea that the collateral benefits were earned by the injured plaintiff, not by the tortfeasor, is typically expressed by Paradis v. Thomas, supra, approving plaintiff’s recovery for the value of “free” governmental medical services plaintiff received as a member of the armed services. Quoting other authorities, the opinion states:

[I]t might well be considered that medical and hospital services supplied by the Government to these members of the United States Navy were part of the compensation to them for services rendered, and therefore that by their service in the Navy they had paid for these, [quoting Burke v. Byrd, 188 F.Supp. 384 (N.D.Fla.1960) ].
Where a person has been disabled and hence cannot work but derives an income during the period of disability from a contract of insurance or from a contract of employment which requires payment during such period, his income is not the result of earnings but of previous contractual arrangements made for his own benefit, not the tortfeasor’s, [quoting Restatement of Torts § 920, comment e],

Paradis, like so many other authorities, thus emphasized plaintiff’s special deserving of the collateral benefit, as something earned, when denying credit to the tort-feasor. But here the case is different, and if the Paradis reasoning is necessary to justify the collateral source rule, the rule lacks moral force here. For it is because the Cerebral Palsy Clinic is charitably subsidized, not because the Stanleys have in some way prepaid for the advantage, that the Clinic will treat the Stanley child for less than the commercial market price.

While plaintiff’s special deserving adds justification for the collateral source when that factor is present, it is not indispensable. For the dominant purpose of the rule is to deny the tortfeasor a windfall credit reducing his monetary responsibility on account of benefits the victim received, however funded, from a source independent of the tortfeasor. As this Court said in Walker v. Hilliard:

If there must be a windfall, it is more just that the injured party profit, rather than the wrongdoer be relieved of full responsibility from his wrongdoing.

See also Janes v. Baptist Hospital of Miami, Inc., 349 So.2d 672, 673 (Fla. 3d DCA 1977), cert, den., 355 So.2d 512 (Fla.1978); Restatement (Second) of Torts, § 920A; Fleming, The Collateral Source Rule and Loss Allocation in Tort Law, 54 Calif.L.Rev. 1478, 1483 (1966).

In this case two additional factors strengthen the case for excluding the collateral source evidence. One is that the continued availability of the programs alluded to is a matter of conjecture. They depend, as do all governmental and charitable programs, on the vicissitudes of taxing or donations, program preferences and budget priorities. As quoted earlier, one witness said precisely that about the Speech and Hearing Clinic: “[T]he one I know of on Laura Street, that is not funded.” The other witness acknowledged that “Government programs come and they go.” Thus neither the testimony nor our common experience permits us to say with any assurance, as defendant’s counsel said in argument to the jury, “Tommy can be taken care of in our community and ... money damages aren’t the key to whether or not he can be taken care of.”

Secondly, if liability is established, the verdict’s purpose is to assess the money required for recompense. Beyond that, whatever confidence the jury may have in the programs and personnel of Jacksonville’s Speech and Hearing Clinic and Cerebral Palsy Clinic, the verdict cannot legitimately dictate that the Stanleys resort to those specialists, rather than to others in the private sector, to minister to this child in his youth and beyond. These defendants, an obstetrician and a hospital who presumably charge competitive rates for their services, can attest that no law compelled the Stanleys to resort to charities or government for the medical care needed during Mrs. Stanley’s pregnancy and delivery; just so, no law now consigns the Stanleys to those sources for the needed pediatric care. Most people, having the ability to pay, prefer private care. Therefore, even those commentators who would award no damages for past medical care that was in fact charitably provided, would award full value for the same medical care in the future, thus preserving claimant’s future choice at the tortfeasor’s expense. Professor Sedler, for example, would “deny recovery to the plaintiff” for the value of services previously received at a public or private charity hospital, “since as to him such care was free, and there is no reason to permit him to be able to recover the cost from the defendant.” He continues:

Whether the hospital should be able to recover from the tortfeasor is a different matter, but in all probability it is not worthwhile for them to pursue such claims. The plaintiff should be able to recover the cost of future medical services, since he is likely to prefer private care, and it is his “right” to have it. It may be that he will employ the free care for which he is eligible and thereby receive a “windfall,” but recovery for past and future expenditures must be had in a single action, and at the time of suit there is no way of knowing what he will choose to do.

Sedler, The Collateral Source Rule and Personal Injury Damages: The Irrelevant Principle and the Functional Approach, 58 Ky.LJ. 161, 186 (1970).

For the reasons stated, we conclude that it was error to permit cross-examination showing that therapy and special education was available to the Stanley child “for nothing or for some sort of sliding scale,” depending on income, from charitably or publicly funded agencies. We now must address the question of whether the error was of such a character as to require a new trial.

A superficial reading of the decisions would seem to suggest that admitting collateral source evidence is per se prejudicial to a fair trial on liability, akin perhaps to a prosecutor’s comment at a criminal trial on the accused’s failure to testify. Certainly the decisions of recent years have almost uniformly ordered new trials. Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982); Clark v. Tampa Electric Co., 416 So.2d 475 (Fla. 2d DCA 1982); Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975); Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA 1973), cert. den., 285 So.2d 414 (Fla.1973). But cf., Grossman v. Beard, 410 So.2d 175 (Fla. 2d DCA 1982). In each of those cases, however, the collateral source evidence had a specific and ar-ticulable propensity for genuine prejudice on liability issues, either suggesting that claimant was already fully compensated for his injury or tending to defame claimant’s motives or general verdict-worthiness.

Thus, Kreitz was an automobile accident case in which defendant’s liability depended on plaintiff proving, as claimed, that he sustained “a relatively small permanent injury.” The collateral source evidence of workers’ compensation benefits was found to be prejudicial to the liability issue because, “the issue being close,” the jury might “very well ... have concluded that the Workers’ Compensation benefits were sufficient recompense .... ” 422 So.2d at 1052.

In Clark, the collateral source payments were not actually evidenced, but were hinted at by cross-examination inquiring whether plaintiff “was making more money now that he was disabled,” through disability income, social security and worker’s compensation, “than when he was employed.” Though the evidence was plausibly relevant to show that plaintiff “was malingering for financial gain,” the cross-examination was disallowed and the trial judge admonished the jury not to consider collateral source payments. After a verdict of no liability, the district court reversed for a new trial, saying “the jury may well have concluded that appellants were already quite financially well off and needed no additional recovery from appellee.” 416 So.2d at 477.

In Williams, the defendants were permitted to prove, “for the purpose of impeaching the plaintiff’s testimony regarding her motivation to return to work,” that plaintiff received welfare benefits on account of her dependent children for two years before the accident and, apparently, continuously until the trial. Though the collateral source rule would perhaps not be strictly applicable to welfare for dependent children paid before the accident, the court reversed the no-liability judgment for defendant and required a new trial, quoting Cook to the effect that “there generally will be other evidence having more probative value and involving less likelihood of prejudice than the victim’s receipt of insurance-type benefits.” 309 So.2d at 11.

In Cook, a medical malpractice case, the court reversed a no-liability judgment because evidence of social security and workers’ compensation payments was admitted to rebut plaintiff’s testimony “concerning his motivation and desire to return to work.” 277 So.2d at 849. The court, noting persuasive authority elsewhere to the effect that collateral source evidence is “likely to influence the jury against the plaintiff on the issues of liability or damages,” stated:

It cannot be said with any degree of certainty that the jury did not determine that since the appellant was otherwise being taken care of, there should be no recovery against appellee in tort. The admission of evidence of receipt of other benefits may indeed have led the jury to believe that appellant was trying to obtain a double or triple payment for one injury. [277 So.2d at 850],

Obviously there are significant differences between this case and those we have discussed. Here any influence of the erroneously admitted evidence upon the no-liability verdict was more subtle. No merciful jury could have thought the charitable or governmental care so problematically evidenced in this case was of a value wholly equivalent to the child’s loss due to the alleged negligence. Nor did this evidence carry a “sting” in addition to its face value, as by attributing duplicity, greed, or some other such motive to the plaintiffs.

There is some difficulty, then, in describing a specific analytical link between the improper evidence and the no-liability verdict in this case. In the final analysis, however, we are influenced by two factors to order a new trial: first, because the burden must be upon the defendants to show that the improper evidence did not influence the no-liability verdict, not upon the plaintiffs to show the contrary; and second, because counsel for the defendant physician thought the link sufficiently evident, and sufficiently strong, to merit a prominent place in his summation.

Determining the actual effect of improper collateral source evidence is necessarily a speculative matter. That difficulty is no doubt at the root of decisions, such as Cook, that imply where the burden lies by such recitals as: “It cannot be said with any degree of certainty that the jury did not determine ....” Placing the risk of non-persuasion on the party who sought the benefit of the improper evidence is in accord with the general proposition, recently relied on by this Court in Schilpp v. Schilpp, 380 So.2d 573, 576 (Fla. 1st DCA 1980), that “[wjhere, as here, clear error is made to appear, injury is presumed to follow, unless the record affirmatively shows to the contrary.” The defendants have not persuaded us that their evidencing the availability of low-cost charitable therapy had no influence on the jury’s liability deliberations in this case, closely contested as it was.

The actual linkage between the improper evidence and the no-liability verdict is best demonstrated, if it must be, by the closing argument of able counsel for the defendant physician. Earlier, when on proffer the admissibility of the evidence was debated, defendants’ counsel and the court concurred in describing the evidence as going to the issue of “what is the reasonable cost of caring for this child.” The court further explained, addressing plaintiffs’ counsel:

Mr. Terrell, I anticipate that you are going to put up on a flip chart before we are finished on argument, $120 times twelve months times the life expectancy of seventy-six years and multiply it out. It’s going to be millions of dollars, and I believe that in fairness, essential fairness, counsel should indicate that that may not be the reasonable cost of the kind of treatment that this person needs.

That description of the evidence, and its pertinence only to damage issues, is to be contrasted with its significance as described to the jury later, in the defendant physician’s summation: “I hope that I have shown you that Tommy can be taken care of in our community and that money damages aren’t the key to whether or not he can be taken care of.”

We readily acknowledge, as indicated in the full text of his argument quoted earlier in this opinion, that counsel ladened his message with cautions, disclaimers and qualifiers, so not to insist too much that the evidence was pertinent to liability. Nevertheless, the difference between what was asserted by counsel’s argument, and what was disclaimed or reserved, is too small to measure. We cannot say that counsel’s argument did not affect the jury as he intended it should.

Other possible irregularities in the trial, not amounting to error but producing some grounds for complaint — such as the questionable authentication of the auditory-evoked response test documents — will no doubt be cured at retrial.

The judgment is REVERSED and the case is REMANDED for a new trial.

McCORD and MILLS, JJ., concur.

      . This comprehensive definition introduces an equally comprehensive discussion of the subject in 3 M. Minzer, J. Nates, C. Kimball, D. Axelrod, R. Goldstein, Damages in Tort Actions § 17.00 at p. 17-5 (1982) [hereinafter cited as Minzer et a/.].

      .Section 768.50(2) provides that, “for purposes of this section,”
      (a) “Collateral sources” means any payments made to the claimant, or on his behalf, by or pursuant to:
      1. The United States Social Security Act; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits.
      2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others.
      3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
      4. Any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.

      . Walker v. Hilliard, 329 So.2d 44 (Fla. 1 st DCA 1976); Allstate Mortgage Corp. v. Alpha Motors, Inc., 294 So.2d 100 (Fla. 3d DCA 1974), cert. den., 303 So.2d 640 (Fla.1974).

      . Clark v. Tampa Electric Co., 416 So.2d 475 (Fla. 2d DCA 1982).

      . Clark v. Tampa Electric Co., supra note (4); Grossman v. Beard, 410 So.2d 175 (Fla. 2d DCA 1982); Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA 1973), cert. den., 285 So.2d 414 (Fla. 1973); Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st DCA 1967), cert. den., 204 So.2d 328 (Fla.1967). In actions subject to the Florida Automotive Reparations Reform Act, workers’ compensation benefits are specifically excluded from collateral source benefits which are to be shown to the jury and deducted from the damage verdict. Sec. 627.7372(3), Fla.Stat. (1981). In that Act the general definition of “collateral sources” is the same as in § 768.50(2)(a), here involved.

      . Clark v. Tampa Electric Co., supra note (4); Cook v. Eney, supra note (5).

      . Janes v. Baptist Hospital of Miami, Inc., 349 So.2d 672 (Fla. 3d DCA 1977), cert. den., 355 So.2d 512 (Fla.1978). See also 3 Minzer et al., supra note 1, § 17.23 at pp. 17-76, 77:
      The collateral source rule generally permits an injured person to recover full damages without regard to benefits paid by Social Security and its subsidiary Medicare and Medicaid programs. Social Security and Medicare benefits have been likened to payments under private insurance plans, since they will ordinarily have been at least partially financed by contributions from the recipients in the form of employee taxes. Similarly, Medicaid has been described as a system of social insurance, although in operation it more closely resembles a system of public welfare under which benefits do not depend on contributions.

      . Walker v. Hilliard, supra note 3, 329 So.2d at 45. As that was a case of property damage, compensated by insurance bought by the plaintiff, the Court added that “there is no privity” between the wrongdoer and the insurer, and “the policy was written for the benefit of the insured, not for the wrongdoer.”

      . 54 Calif.L.Rev. at 1483:
      The constantly recurring refrain, with strong overtones of moral outrage, is that the defendant should not be “let off” from any portion of what is his due by the exertions and foresight of his victim or those who stood by him in his hour of need.

      .3 Minzer et al., supra note 1, § 17.44[1], at p. 17-217:
      Uncertainty as to the actual future receipt of gratuitous government aid offers an additional argument favoring application of the collateral source rule, especially where the provision of benefits depends on a succession of administrative decisions over an undeter-minable period of time.

      . In the proffer, to a greater degree than before the jury, the qualitative differences between private and public medical care, of the nature required, was described by Dr. Buda:
      A. But you have to realize that there is a variation in the type of services they are given.
      Q. Right. In other words, if you had the money to spend the money that you are talking about, you could go to a private physician for private speech and hearing, especially for private therapy and get a higher quality or better attention?
      A. That is true.
      Q. But there are basic fundamental good adequate services available to the public in these institutions; is that correct?
      A. I would say that there are services available. I don’t know if I would take all your qualifiers.

      . Grossman is a variation from the norm requiring a new trial on liability for an error in admitting collateral source benefits. Plaintiffs claimed damages including the cost of extensive psychiatric treatment. The trial court admitted evidence of workers’ compensation benefits paying plaintiff’s bills because defendant was prepared to prove that “this type of psychiatric treatment is ineffective unless the patient bears the expense of treatment .... ” 410 So.2d at 176. The district court held the evidence irrelevant and prejudicial, but, while requiring a new trial on damages against the defendant whom the jury held liable, did not order a new trial against the defendant whom the jury found not liable. Possibly the result would have been different had the jury acquitted both defendants.

      . Annot., 77 A.L.R.2d 1154 (1961); Eichel v. New York Cent. R.R., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed.2d 307, 309 (1963). The United States Supreme Court, in Eichel, sustained a district court’s holding that evidence of Railroad Retirement Act disability pension payments was inadmissible at the trial of claimant’s action against the railroad under the Federal Employers’ Liability Act. The Court did not deny that the evidence may have had some relevance, but said the likelihood of misuse outweighed that possible value; that other evidence could be obtained as proof of the same relevant fact; and that admitting the collateral source evidence would violate the spirit of the statute affording disability benefits.

      . The court also said in Cook that “the evidence was presumably considered without qualification as bearing on a basic fact essential to liability.” 277 So.2d at 850. The literal accuracy of that statement is difficult to prove from the facts appearing in the opinion; how social security and workers’ compensation benefits bear on “a basic fact essential to liability” in a medical malpractice case does not readily appear. The quoted language evidently was taken from the Supreme Court’s opinion in Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 37, 84 S.Ct. 1, 3, 11 L.Ed.2d 4, 6 (1963), mentioned in Eichel, text at note 3, and decided earlier in the same term. In Tipton the claimant’s acceptance of benefits under the Longshoremen’s and Harbor Workers’ Compensation Act was literally relevant to “a basic fact essential to liability” under the Jones Act, that claimant was a seaman and not an off shore drilling employee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lee SMITH, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 82-2598.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1982.
    Rehearing Denied Jan. 24, 1983.
    Robert Lee Smith, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Robert Lee Smith brings this petition for habeas corpus seeking a delayed appeal pursuant to Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). Petitioner alleges that he asked his appointed attorney to take an appeal after his conviction of first degree murder on September 7,1958, but that no appeal was taken.

Petitioner further contends that he filed a motion to vacate alleging denial of the right to a direct appeal in 1966 which was denied and not appealed but does not allege any justification for waiting until the present for filing this petition. We see some justification for further delay until 1967 (the date of the Hollingshead decision, supra) or at the latest until 1969 [the date of the leading case establishing the right to delayed review, Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) ]. However, some thirteen years have transpired from even that date. Bashlor v. Wainwright, 369 So.2d 695 (Fla. 1st DCA 1978), notwithstanding, we find that the laches doctrine of Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970), is applicable here. See also Broxson v. Wainwright, 271 So.2d 478 (Fla. 1st DCA 1973). Accordingly, this petition for writ of habeas corpus is hereby denied.

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


author: HERSEY, Judge.

text:
    Mickie Frank RAUSO a/k/a Michael Frank Rauso and Sherry Irene Woodward, Appellants, v. STATE of Florida, Appellee.
    No. 81-1343.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 9, 1983.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant-Woodward.
    Channing E. Brackey of Brackey, Finkel-stein & Dallas, P.A., Fort Lauderdale, for appellant-Rauso.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appealed here are two felony judgments and sentences. Mickie Frank Rauso was convicted by a jury of false imprisonment and battery. The felony judgments reflect adjudications of guilty of kidnapping and sexual battery. The respective sentencing documents, however, reflect the crimes actually adjudicated by the jury. We remand for correction of the clerical errors in the judgments which will not necessitate the presence of appellant, Rauso.

Appellants raise several grounds for reversal and new trial. We find them to be without merit under the circumstances of this case. Only two points warrant brief discussion.

Appellants claim ineffective assistance of counsel. The record amply demonstrates the appropriateness of application of the rule in State v. Barber, 301 So.2d 7 (Fla.1974), to the facts of this case as opposed to the exception engrafted onto the rule by Foster v. State, 387 So.2d 344 (Fla.1980). Under Barber the question of adequacy of representation may not be raised for the first time on direct appeal. Foster creates an exception where actual conflict of interest or prejudice is shown. See Washington and Thompson v. State, 419 So.2d 1100 (Fla. 3d DCA 1982). Appellants are not precluded from seeking review by way of a proceeding on this issue pursuant to Florida Rule of Criminal Procedure 3.850.

Appellants additionally complain that, having been informed against for kidnapping, they could not be convicted of false imprisonment because the latter is not a lesser included offense of the former. While we are inclined to agree with this position for reasons we will shortly discuss, the argument is to no avail in the present case because counsel not only acquiesced in treatment of false imprisonment as a charge to be tried, but also specifically invited the trial court to “reduce” the charge to false imprisonment. Appellants are bound by the position of trial counsel. Castor v. State, 365 So.2d 701 (Fla.1978).

We now indulge in dicta for the guidance of counsel in future cases and as an invitation to the legislature to consider whether a change is desirable.

Appellants were charged with kidnapping. The statute under which they were charged provides, in pertinent part:

787.01 Kidnapping.—
(l)(a) “Kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.

Appellants were found guilty of the crime of false imprisonment. That statute provides, inter alia:

787.02 False imprisonment.—
(l)(a) “False imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against his will with any purpose other than those referred to in s. 787.01.

The question is whether false imprisonment is a lesser included offense of kidnapping.

The categories of lesser included offenses have been reduced to two:

1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

The “Schedule of Lesser Included Offenses” of the Florida Standard Jury Instructions In Criminal Cases lists false imprisonment as a lesser included offense of kidnapping. Nonetheless, we are skeptical.

The test to be applied to determine whether a particular offense is lesser and included within another offense is summarized in Borges v. State, 415 So.2d 1265 (Fla.1982), as follows:

A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. If each offense requires proof of an element that the other does not, the offenses are separate and discrete and one is not included in the other. Blockburger v. United States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306] (1932).

To prove kidnapping it is necessary to introduce evidence of specific intent in one of four enumerated categories. To prove false imprisonment it is necessary to prove the existence of “any purpose other than those” four. Unless this is substantially equivalent to a provision that intent is not a necessary element of the crime of false imprisonment then the test is not met. A more logical interpretation is that scienter is an essential element of the crime of false imprisonment. Accepting that premise an intent (other than Section 787.01(a) motives) must be alleged in the accusatory pleading and proven at trial beyond a reasonable doubt in order to convict a person of false imprisonment. We accept this construction of the statute.

Any other interpretation would merge the criminal and civil elements of false imprisonment thus imputing to the legislature an intention to equate criminal false imprisonment with civil false imprisonment. To illustrate, if Brown intentionally, but as a practical joke, locks the door while his room-mate Smith is searching in a closet for his blue suit, and if Smith is a claustrophobiac and suffers both mental and physical stress resulting in injury and ultimate damage, then Brown is answerable for the tort of false imprisonment. There has been an intentional confinement of another, without lawful authority and against his will. No malicious motive need be shown. 24 Fla.Jur.2d, False Imprisonment, §2. We are not prepared to assume that the legislature intended to brand Brown as a felon as well as a tortfeasor.

As originally indicated the formal judgments against Rauso are to be corrected upon remand. In all other respects we affirm.

AFFIRMED with REMAND FOR TECHNICAL CORRECTION.

ANSTEAD and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Press WIGGINS, Appellee.
    No. 82-817.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 9, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Charles Peters, Asst. Public Defender, and Barbara White, Legal Intern, West Palm Beach, for appellee.
   HERSEY, Judge.

AFFIRMED. Appellee, incarcerated in the Memphis Tennessee Federal Correction Institution, filed a request for final disposition of charges pending against him in Bro-ward County, Florida. Broward County then filed a request for temporary custody in order to bring appellee to trial. Detain-ers had previously been placed against ap-pellee by both Broward and Palm Beach Counties. The Broward County charges were disposed of in due course. Subsequently, appellee was paroled from federal custody and extradited to Palm Beach County for trial on pending charges. The trial court held that under Section 941.45(3), Florida Statutes (1981) (a section of the Interstate Agreement on Detainers), once a request for final disposition is made it is the duty of the state to treat it as a request for final disposition of all charges pending against appellee for which detainers have been filed. On that basis the trial court dismissed the Palm Beach County charges.

As noted by the United States District Court (Eastern District of Pennsylvania):

In order to claim a remedy under this provision, a prisoner must allege that one jurisdiction has requested his transfer from another jurisdiction for trial and returned him without trying him to the first jurisdiction. Under the Act, the United States is one jurisdiction. United States v. Gappucci, 342 F.Supp. 790, 793 (E.D.Penn.1972) (emphasis supplied).

Logically, if the United States is one jurisdiction, Florida is also a single jurisdiction. It is axiomatic that

where the language of a statute is clear and unambiguous and conveys a clear and definite meaning, courts should not resort to rules of statutory interpretation and construction. The statute must be given its plain and obvious meaning.... [and a] [construction of a statute which would lead to an absurd result should be avoided.

Winter v. Playa del Sol, Inc., 353 So.2d 598, 599 (Fla. 4th DCA 1977).

Sections 941.45(3)(d) and 941.-45(4)(b) & (e), Florida Statutes (1981), rather clearly provide for notice to those jurisdictions within the state which have filed detainers against the prisoner either when the prisoner requests final disposition or when the state attorney’s office requests custody or availability of the prisoner. Upon receipt of this notification, it is the responsibility of each county within the state which filed a detainer to proceed to trial upon any indictments, informations or complaints filed against the prisoner prior to the return of the prisoner to the original place of imprisonment. If trial is not had on any information, indictment or complaint prior to the prisoner’s return to the place of incarceration, such charges must be dismissed with prejudice.

In view of the purpose of the Agreement (to effectuate the expeditious disposition of untried indictments or informations which might otherwise hinder efforts of the sending state to treat and to rehabilitate the prisoner) it would be inimical to permit the shuffling of a prisoner between federal prison and the numerous counties of a particular state.

We therefore hold that dismissal of the charges would have been mandated by the application of either Section 941.45(3)(d) or Section 941.45(4)(e), Florida Statutes (1981) and we accordingly affirm the dismissal.

AFFIRMED.

ANSTEAD and WALDEN, JJ., concur.


author: PER CURIAM. ERVIN, Justice,

text:
    E.B. MALONE CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Lemuel Blaine JOHNSON, Appellee.
    No. AB-15.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1983.

      David J. Williams and Jon H. Anderson of Lane, Trohn, Bertrand & Williams, Lake-land, for appellants.
    Michael B. Murphy of Stanley, Wines & Smith, Auburndale, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding catastrophic loss benefits from the date of the accident through January 21, 1980, and temporary partial disability benefits thereafter at the fixed rate of $40 per week. The order further determined claimant’s average weekly wage, awarded interest, penalties and costs, and reserved jurisdiction to determine attorney’s fees. The employer/carrier raises numerous points on appeal. We affirm in part and reverse in part.

Claimant Johnson is a 20-year-old high school graduate who was employed by appellant E.B. Malone Corporation, a manufacturer of mattresses and box springs, as a roll pack machine operator. On October 4, 1979, as he prepared to feed the machine quilting material, Johnson sustained an industrial injury when his right hand became caught in a metal roller, resulting in abrasions and fractures of the proximal bones of his three middle fingers. No injury occurred to the palm of his hand or his thumb. Johnson went immediately to the emergency room of Lake Wales Hospital, where fixation pins were surgically placed into the middle three fingers. After a short hospitalization, Johnson was discharged, ambulatory, with his hand in a cast.

On October 11, 1979, Dr. Casingal, the treating orthopedic surgeon, removed the dressing and noted that Johnson’s wound looked clean, the fingers were “alive,” and x-rays were satisfactory. On November 16, the pins were removed from Johnson’s fingers, and there was no sign of infection. X-rays showed the fractures were healing, and Dr. Casingal assigned Johnson exercises. Although Johnson’s fingers remained “moderately stiff” for the next few weeks, Dr. Casingal encouraged Johnson to do exercises and felt that he could return to work by January 17, 1980.

On January 23,1980, Johnson returned to work for E.B. Malone Corporation at the rate of pay he had received prior to the accident. He was initially assigned work as a material stager but, shortly thereafter, was returned to his former position as a roll pack machine operator at his own request. Johnson testified that, while he was able to work, he sometimes had trouble picking up large rolls of material with both hands. On March 11, 1980, he was terminated because of unexcused absences and unsatisfactory job performance.

On March 19, 1980, Johnson began working as a stock man at Belk-Lindsey. His job consisted primarily of pricing merchandise and loading trucks. On June 16, 1980, Johnson reached maximum medical improvement pursuant to an evaluation by another orthopedic surgeon, Dr. Peacock. Dr. Peacock’s assigned maximum medical improvement date was premised upon Johnson’s statement that he was satisfied with his hand the way it was and did not desire any other surgery or physical therapy. However, Johnson’s hand remained slightly swollen and stiff, and prevented him from performing precision work such as writing for long periods. Accordingly, on August 7, 1980, he informed Dr. Peacock that he wished to resume therapy. On September 19, 1980, Johnson left his job at Belk-Lind-sey to look for night work. He subsequently worked for a meat packing company as a laborer for four days but left because the cold temperatures in the freezer bothered his hand.

A hearing was held November 11, 1980, on Johnson’s claim for temporary total and/or temporary partial disability, catastrophic loss, and other workers’ compensation benefits. The Deputy Commissioner subsequently entered an order determining that Johnson was entitled to catastrophic loss benefits pursuant to Section 440.-15(2)(b), Florida Statutes, and Van Eyk v. R.N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979), between the date of the accident and his return to work on January 21, 1980. On appeal, the employer/carrier urges that Van Eyk is distinguishable and that Section 440.15(2)(b) is inapplicable to the type of injuries which occurred in this case.

The catastrophic loss provision, Section 440.15(2)(b), Florida Statutes (1979), in effect on the date of the accident, provides for increased temporary total disability benefits where an employee sustains “the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system.” By its very terms, the provision creates an ambiguity. An interpretation of this statute to include as a catastrophic injury the temporary and total loss of use of an arm, leg, hand, or foot would render superfluous the more specific clause requiring the total loss of use of such member because of organic damage to the nervous system. We do not construe the more general clause as extending the right to catastrophic loss benefits but rather, pursuant to established rules of statutory construction, we limit the right to such benefits to cases which meet the criteria of the more qualified language requiring, at least, the total loss of use of an arm, leg, hand, or foot because of organic damage to the nervous system.

This construction makes applicable prior case law interpreting the catastrophic loss provision. In cases under the prior Act, a claimant who is totally unable to perform functions required in his employment due to organic damage to the nervous system is not required to prove amputation or equivalent loss of use in order to obtain catastrophic loss benefits. See, Van Eyk v. R.N. Hicks Construction Company, supra; Santiago v. Orr Industries, Inc., 407 So.2d 1026 (Fla. 1st DCA 1981). Neither may such benefits be conditioned upon the necessity for physical therapy or participation in a rehabilitation program, Gardner v. D.F.S. Construction Company, 358 So.2d 171 (Fla. 1978), although a primary purpose of the provision is to allow additional benefits during the period of adjustment via training in the use of artificial members or appliances and training or education under a rehabilitative program pursuant to Section 440.49, if provided. However, the catastrophic loss provision was never intended to apply to cases such as this, where the claimant sustains, without any organic damage to the nervous system, a short-term and temporary loss of use of one hand due to fractures of three fingers and various abrasions. No reported decision has allowed recovery for such injuries, and, indeed, to do so would result in the award of catastrophic loss benefits in the majority of temporary disability cases wherein any injury, regardless of the degree of severity or lack thereof, to one of the specified parts of the body renders it temporarily useless. Accordingly, the award of catastrophic loss benefits from the date of the accident through January 21, 1980 is reversed.

The employer/carrier also contends that the Deputy erred in awarding claimant temporary partial wage loss benefits at a flat weekly rate of $40 “continuing until such time as [the claimant] is no longer temporarily and partially disabled.” Section 440.15(4)(a), Florida Statutes (1979), provides that such benefits “shall be based on actual wage loss” as “compared on a weekly basis.” The flat prospective award here, even though it approximated Johnson’s actual wage loss, was erroneous. The flat award was tantamount to an award under the prior statute for loss of wage earning capacity and did not sufficiently account for the likelihood of fluctuations in the claimant’s actual earnings. Thus, the flat award of $40 per week must be reversed and the cause remanded for a recalculation of the amount of benefits based on claimant’s actual wage loss from week to week. See Florida Administrative Code, Rule 38F-3.19.

We also note that the Deputy’s finding that Johnson did not voluntarily limit his income was not based on competent substantial evidence, as the uncontroverted testimony was that Johnson voluntarily left his job with Belk-Lindsey on September 19, 1980 to seek more desirable employment. On remand, therefore, the Deputy should apply the “deemed earning capacity” provision of Section 440.15(4)(b), Florida Statutes (1979), to Johnson’s wage loss subsequent to September 19, 1980. This section provides that, when a claimant voluntarily limits his income, temporary partial disability benefits shall be based upon “the amount which would have been earned if the employee did not limit his income or accepted appropriate employment.” Id.

The employer/carrier’s remaining point on appeal is without merit. Accordingly, the order is affirmed in part and reversed in part, and remanded for further proceedings in accordance with this opinion.

BOOTH and THOMPSON, JJ., concur.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Justice,

concurring and dissenting.

I concur in all facets of the majority’s opinion except that portion reversing the award of catastrophic loss benefits. The majority correctly observes that the applicable statute is Section 440.15(2)(b), Florida Statutes (1979), providing for increased temporary total disability benefits based upon 80% of the employee’s wages at the time of the accident in those instances in which the employee sustains “[1] the loss of [a] ... hand, ..., [2] or total loss of use of such ... hand, ..., [3] or total loss of use of such member because of organic damage to the nervous system, .... ” (e.s.) The 1979 statute thus recognizes three discrete classifications in which the award can be based. Obviously neither the first nor last categories are before us. We are concerned only with that type of injury involving the temporary total loss of the use of claimant’s hand during the applicable period.

In my judgment there is both competent and substantial evidence to support the deputy’s finding that claimant suffered the temporary total loss of use of his hand from the date of the accident until the date of his return to work, or a period of time shortly less than three months. The medical evidence discloses that the claimant sustained serious fractures of the middle three fingers of his dominant right hand as a result of the industrial accident, and that when claimant was released from the hospital his right hand was placed in a cast from his elbow to his hand, with the three middle fingers immobilized by the placement of pins through the tops of his knuckles. Moreover, when claimant was initially examined, he was advised by his physician that it was possible he might lose some of the fractured fingers due to the severity of the injury and the length of time in which he lost circulation in the fingers.

I strongly disagree with the majority’s statement that “the catastrophic loss provision was not intended to apply to cases such as this, where the claimant sustains, without any organic damage to the nervous system, a short-term and temporary loss of use of one hand due to fractures of three fingers and various abrasions.” Ante at 625. As we have observed in Santiago v. Orr Industries, Inc., 407 So.2d 1026, 1028 (Fla. 1st DCA 1981), “[tjotal loss of use in the workers’ compensation context indicates the inability to perform functions required in an industrial setting.” See also Van Eyk v. R.N. Hicks Construction Co., 377 So.2d 793, 794 (Fla. 1st DCA 1979). The crushing force of the injury to claimant’s right hand caused him to be totally incapacitated as a worker for nearly three months. The legislature must have contemplated that catastrophic loss awards might be of only short duration since it placed a cap of six months on their continuation'.

The majority’s narrow construction of the words “total loss of use of such ... hand, ...” as involving injuries other than those suffered by claimant is clearly at variance with the well-recognized maxim of statutory construction that any ambiguity in those provisions of the Workers’ Compensation Act according benefits to an injured employee is to be construed liberally in favor of the employee. See Kerce v. Coca Cola Company Foods Division, 389 So.2d 1177 (Fla.1980). I would, for the reasons stated, sustain the award.

As to the reversal of that portion of the decretal order awarding claimant temporary partial wage loss benefits at a flat weekly rate of $40 and “continuing until such time as [the claimant] is no longer temporarily and partially disabled”, I agree that it should be reversed. I think, however, that had a specific amount not been stated, the remaining words limiting the award until such time that claimant “is no longer temporarily and partially disabled” is sufficiently finite in that it necessarily allows for flexibility and encompasses the possibility of a determination of a wage-loss on a month-by-month basis. See Deltona Corp. v. Morris, 418 So.2d 1274 (Fla. 1st DCA 1982). As we observed in Deltona Corp., “[tjhere is nothing in the 1979 statute to prevent a party from requesting serial hearings to determine the appropriate benefit for each period of wage-loss.” Id. at 1275. The cessation of the condition, therefore, under the Deltona test, places the carrier on notice of the extent of its liability for wage-loss benefits.

I concur in all other facets of the majority’s opinion.

      . This conclusion is influenced and buttressed by the legislative history of the statute and the reviser’s note to the 1981 amendment which recognized that the inclusion of the more general clause in the 1979 amendment was the result of a redundancy apparently caused by a typographical error. As amended in 1981, Section 440.15(2)(b), Florida Statutes, provides, in pertinent part, as follows:
      [A]n employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight of both eyes shall be paid temporary total disability of 80 percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to s. 400.49, if provided.

      . Section 440.15(2)(c), Florida Statutes (1977), provided, in pertinent part, as follows:
      [A]n employee who has sustained a loss of an arm, leg, hand, or foot, or total loss of use of such member, because of organic damage to the nervous system, or has lost the sight of both eyes as provided in paragraph (3)(p), shall be paid temporary total disability of 80 percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to subsections 440.49(1)(2), or (3), if provided.


text:
    Patrick Antony STEWART a/k/a Patrick Anthony, Appellant, v. The STATE of Florida, Appellee.
    No. 82-530.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Rehearing Denied Feb. 15, 1983.
    Bennett H. Brummer, Public Defender, and Sheryl Lowenthal Javits, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son and William Thomas, Asst. Attys. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Britton, 387 So.2d 556, 558 (Fla. 2d DCA 1980); Hudson v. State, 353 So.2d 633 (Fla. 3d DCA 1977).


author: GLICKSTEIN, Judge.

text:
    Thomas E. WHITEHEAD, Thomas D. McCloskey, James C. McCloskey, Thomas D. McCloskey, Jr., George B. Jamme and James Y. Arnold, Jr., Appellants, v. RIZON EAST ASSOCIATION, McCloskey and Co., Inc., Mechanical Systems, Inc., F.A. Kashmiry and Kashmiry & Associates, Inc., Appellees.
    No. 80-364.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    F. Kendall Slinkman, West Palm Beach, for appellants.
    Howard L. Conklin of Tripp & Conklin, Fort Lauderdale, for appellees, F.A. Kash-miry and Kashmiry & Associates, Inc.
    V. Craig McCaghren, West Palm Beach, for appellee, Mechanical Systems, Inc.
   GLICKSTEIN, Judge.

This is an appeal by developers/partners, third-party plaintiffs in the trial court, from a summary final judgment entered in favor of three third-party defendants: an air-conditioning, heating and ventilation contractor, Mechanical Systems, Inc.; an engineer, F.A. Kashmiry; and the engineer’s corporation, Kashmiry & Associates, Inc. We reverse and remand.

The original proceeding was brought in 1974 by numerous owners of condominium units in Horizon East, a nine-story, forty-eight unit building located in the Town of South Palm Beach. The defendants (third-party plaintiffs) were the six partners doing business as South Palm Beach Club, which was alleged to have developed and constructed the building. The complaint alleged numerous defects, including the one involved here, the absence of exhaust duct venting in the bathrooms. Attached to the complaint was a copy of the standard terms and conditions portion of the purchase and sale agreement between the parties; paragraph three thereof recites in part:

3. The Building. If at the date of this Agreement the condominium building in which the condominium parcel is located has not been completed, then the Developer does agree that it will construct and equip a multi-story apartment building and other improvements substantially in accordance with the plans thereof and all revisions and addenda thereto prepared by Petersen & Martin, Architects, Pompano, Florida, on file at the office of Developer (allowing only those minor deviations which may be occasioned by expediency, practicability and as are common to the construction industry in general) in accordance with current construction schedules and subject to availability of labor and materials.

With respect to Mechanical, at the time summary judgment was entered, the pleadings were in an atrocious condition. The partners had filed an answer and third-party complaint as a result of the plaintiffs’ amended complaint. However, they never filed an answer to the second amended complaint nor did they adopt any of the allegations in the second amended complaint by filing an amended third-party complaint against Mechanical. Therefore, Mechanical was not obligated to file an amended answer with respect to any matters contained in the second amended complaint. The parties’ pre-trial stipulation, which we shall discuss later, was not filed until one day after the entry of summary judgment in favor of Mechanical.

What the trial judge had before him as to Mechanical was the plaintiffs’ amended complaint, which contained a paragraph titled “Second Cause of Action” and captioned “Breach of Provisions of Declaration of Condominium.” In this paragraph, the plaintiffs alleged that the declaration of condominium provided for the building to be constructed in accordance with the architects’ plans and specifications and that the defendants failed to comply with this requirement. The “Fourth Cause of Action,” captioned “Breach of Implied Warranties,” alleged that the parties’ impliedly warranted “to the individual Plaintiffs” that the condominium would be constructed in a reasonably workmanlike manner, fit for its intended purpose, and that the partners breached these warranties.

In their third-party complaint directed to Mechanical, the partners never used the phrases “negligent construction” or negligent design. They did allege, though, that Mechanical was responsible for the determination of the type of ventilation system that went into the building as well as the construction thereof. Further, they applied the foregoing “Second Cause of Action” and “Fourth Cause of Action” to Mechanical and additionally asserted:

5. Furthermore, the Third Party Plaintiffs state that the Third Party Defendant, Mechanical Systems, Inc., expressly warranted and represented to the Third Party Plaintiffs that the aforementioned structure and, specifically, the air conditioning, heating and ventilation system which was installed by the Third Party Defendant, Mechanical Systems, Inc., and/or manufactured by the Third Party Defendant, Mechanical Systems, Inc., and/or placed in the structure upon the recommendation of the Third Party Defendant, Mechanical Systems, Inc., would be built and constructed in a reasonably workmanlike manner and that the same would be fit for the purposes for which it was placed in the structure, advertised and sold and fit for normal use.
6. If any of the aforementioned implied or express warranties have been breached or if the structure was not, in fact, constructed in accordance with the plans and specifications prepared by Petersen and Martin, Architects, or the other documents alluded to by the Plaintiffs in the second cause of action of the Amended Complaint then the responsibility for such deficiency falls upon the Third Party Defendant, Mechanical Systems, Inc., insofar as it relates to the air conditioning, heating and ventilating system pursuant to the aforementioned written agreement and the express or implied warranties of the Third Party Defendant, Mechanical Systems, Inc.

(Emphasis added.)

Mechanical contends in its brief that summary judgment was proper; that there can be no liability on its part because the partners’ claims of relief are solely based upon warranty; and that there was no privity between the partners and itself, which claims of warranty require. We agree that privity is essential to the claims based on warranty; and it is uncontradicted that there is no privity between these parties. Accordingly, allegations of express warranties made by Mechanical to the partners would be of evidentiary assistance only upon an issue (if raised by the pleadings) of a tortious breach of some duty owed to the partners, not as allegations of ultimate facts involving the express warranties themselves.

That leaves the question of whether there were any allegations of negligence made by the pleadings against Mechanical. Although marginal, we believe the inartful pleadings were enough to put Mechanical on notice that the partners were claiming negligence. Notice is the name of the game. If Mechanical did not consider itself charged with negligence, its attorney’s execution of the pre-trial stipulation that recited the following would be unexplained except by carelessness or mistake:

III. The issues to be tried between Defendants and Third Party Defendants are:
B. Claim against Mechanical Systems, Inc.
(Defendants’ version)
Negligence; breach of warranty; breach of contract; indemnification.
(Mechanical Systems, Inc.’s version)
Was the air conditioning system as prepared by the Third Party Defendant Mechanical Systems, Inc. fit for its intended use?

Notwithstanding the absence of privity between them, we have no difficulty in ascribing to the partners a duty owed by Mechanical to design and construct a system that met all the requirements the many documents described in the original plaintiffs’ action against the partners. The record is replete with deposition testimony from the partners that they met with Mechanical’s representatives and discussed redesign, which ultimately led thereto and to the subcontract between Mechanical and the contractor — many of whose principals were partners in the development. If, then, there was reliance by the partners upon Mechanical to design a system that complied with all the documents described in paragraph six of the third-party complaint, and the system did not so comply, the cause of action — however inartfully alleged— would appear to be founded in negligence. There may be a complete defense not yet fleshed out which is available to Mechanical (or there may not be), but absence of warranty is not it; therefore, summary judgment should not have been entered in its favor.

With respect to the remaining appel-lees, Mr. Kashmiry and the corporation that bears his name, the partners’ pleadings expressly adopt the second amended complaint against them and allege negligent advice. The issue of their negligence was clearly one of fact at the trial level, which should have precluded the award of summary judgment in their favor. The deposition of Mechanical’s president reflects that he saw a set of plans approved by these appel-lees with no exhaust duct venting in the bathrooms. The answers to interrogatories signed by the general contractor’s representative recite that it is in possession of plans prepared by the Kashmiry corporation which show no exhaust venting in the bathrooms. Although counsel for these appel-lees argues that there is an absence of negligence because of code compliance, Mr. Kashmiry stated on his deposition:

I will be out of my mind if I design a building with bathrooms trapped inside the building with no ventilation, even though there is a window.

Appellees’ argument based upon the statute of limitations is meritless and their remaining point does not warrant discussion.

DOWNEY, J., concurs.

BERANEK, J., concurs in conclusion only.

      . The partners later filed a one paragraph amendment which added an affirmative defense to the answer it had directed to the amended complaint, when the latter pleading was no longer viable.

      . Appellants have argued that Mechanical’s motion for summary judgment failed to conform to the requirements of Florida Rule of Civil Procedure 1.510(c), which, in part, explicitly provides:
      The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued.
      Mechanical contends this point was not presented to the trial court; and we find no motion to strike nor transcript of hearing to support that it was.

      .The amended complaint added the condominium association as a plaintiff.

      . Compare Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463, 468 (Fla. 4th DCA 1975), cert. denied, 327 So.2d 31 (Fla.1976).

      . A warranty is contractual in nature, and is primarily for the benefit and protection of the promisee. Warranties may be either express or implied, but in either event the relations between the parties arise out of contract and are not based on what is known as tort or on duties imposed by law on any theory unrelated to contract.
      77 C.J.S. Sales § 302, at 1117 (1952) (footnotes omitted).
      In Brown v. Hall, 221 So.2d 454, 458 (Fla. 2d DCA 1969), the Second District Court of Appeal held:
      Warranties, as relates to sales, are strictly contractual in nature. This is so, whether the warranty is express or implied.

        See also Marini v. Town & Country Plaza Merchants Ass’n, Inc., 314 So.2d 180, 182 (Fla. 1st DCA 1975), which held:
      The general law as stated in 77 C.J.S. Sales § 302, is as follows:
      ‘Warranty is an incident to a contract of sale, and assumes or necessarily implies the existence thereof. A warranty is not an essential element of a sale, which can exist without it, but there can be no warranty without a sale.’

      . As we have said, the pre-trial stipulation was filed, unexplainably, one day after entry of summary judgment in favor of Mechanical, but prior to entry of final judgment. This is a plenary appeal from the final judgment.

      . In Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515, 519 (Fla. 4th DCA 1981), pet. for rev. denied, 417 So.2d 328 (Fla.1982), this court held:
      We hold that no privity of contract must exist in order for negligent performance of a contractual duty to give rise to liability for damage to an intangible economic interest.

      (Emphasis original.) See also Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 691 (Fla. 2d DCA 1979), upon which Drex-el relied, wherein the court said:
      Although privity is an element of a contract cause of action it is not of a tort.
      The issue in any negligence action is whether the injury resulted from defendant’s violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether these defendants have a legal duty to plaintiffs. “[T]he absence of contractual privity between plaintiff and defendant does not af-feet plaintiffs tort claim, provided plaintiff can establish the existence of a duty between the parties, and defendant’s breach of such duty, with the proximate result that plaintiff suffered the damages of which it complains.” Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416, 419 (E.D.Wash.1976). See also Cooper v. Jevne, 56 Cal.App.3d 860, 128 Cal.Rptr. 724 (Ct.App.2d 1976).
      The duty owed by a defendant to a plaintiff may have sprung from a contractual promise made to another; however, the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract. Existence of a contract may uncontrovertibly establish that the parties owed a duty to each other to use reasonable care in performance of the contract, but it is not an exclusive test of the existence of that duty. Whether a defendant’s duty to use reasonable care extends to a plaintiff not a party to the contract is determined by whether that plaintiff and defendant are in a relationship in which the defendant has a duty imposed by law to avoid harm to the plaintiff.

      . Mechanical’s president, Mr. McKinnon, apparently also submitted to the giving of a sworn statement to plaintiffs counsel during which Mechanical’s counsel was present. In this statement, Mr. McKinnon elaborated upon Mr. Kashmiry’s knowledge and approval of the ventless system. Because of our concern with whether counsel for Kashmiry was served with a copy of this statement, we reluctantly have not included it in our deliberations, notwithstanding that it was taken months earlier than the witness’s depositions. However, in the subsequent deposition given by Mr. McKinnon to counsel for Mr. Kashmiry, he stated that the building permit was obtained on the basis of the shop drawings prepared by Mechanical and approved by Mr. Kashmiry.

      . See Judge Wetherington’s fine article, Tort Indemnity in Florida, 8 Fla.St.U.L.Rev. 383, 435-36 (1980).


text:
    Thomas E. WHITEHEAD, etc., et al., Appellants, v. RIZON EAST ASSOCIATION, INC., et al., Appellees.
    No. 80-964.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Rehearing Denied Feb. 10, 1983.
    F. Kendall Slinkman, West Palm Beach, for appellants.
    Cone, Wagner, Nugent, Johnson, Hazouri & Roth, and Larry Klein, West Palm Beach, for appellees.
   PER CURIAM.

We have considered all of the points raised by appellants and conclude that none warrant reversal. Accordingly, we affirm.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    NATASHA, INC., Appellant, v. William G. FLEAK, Constance A. Fleak, his wife, Alan Goldfarb, Trustee and Matthew Glissen, Appellees.
    No. 82-593.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 1983.
    Jules R. Israel, Miami, for appellant.
    H. Allan Tucker, Hollywood, for appel-lees.
   PER CURIAM.

AFFIRMED.

HERSEY and WALDEN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although the appellant contends that the trial court’s summary judgment of foreclosure was premature and unduly harsh in light of appellant’s tender of arrearages made during the pendency of the foreclosure proceedings, I must agree with the majority that the tender came too late. Amerifirst Federal Savings and Loan Association of Miami v. Century 21 Commodore Plaza, 416 So.2d 45 (Fla. 3d DCA 1982); Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975); New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975).


author: GRIMES, Judge.

text:
    CONCRETE SYSTEMS, INC., a Florida corporation, Appellant, v. FLORIDA ELECTRIC COMPANY OF ORLANDO, a Florida corporation, Appellee.
    No. 82-625.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.
    Glenn T. Shelby of Law Offices of James S. Welch, Lakeland, for appellant.
    David L. Evans of Mateer, Harbert, Bechtel & Phalin, P.A., Orlando, for appellee.
   GRIMES, Judge.

This case involves a dispute between a contractor and an electrical subcontractor on a school construction project.

Concrete Systems, Inc., entered into a contract with Highlands County School Board to perform certain school construction work. The contract called for a completion date of August 23, 1978, and contained a $250 per day liquidated damage clause for delay in finishing the project. The work was actually completed on November 7,1978. The school board sought to recover liquidated damages for the delay, and the matter was taken to arbitration pursuant to the contract. The arbitrator extended the final completion date of the project to October 26, 1978. Consequently, the school board deducted from its payment to Concrete Systems $3,000 for the twelve-day delay beyond October 26, 1978.

Concrete Systems attributed the delay to the failure of one of its subcontractors, Florida Electric Company of Orlando, to timely furnish and install the lighting. Therefore, Concrete Systems withheld a portion of its payment due Florida Electric under the lighting subcontract. Florida Electric sued Concrete Systems for $17,-569.35, representing the unpaid balance of the contract. Thereafter, the court entered a partial summary judgment in favor of Florida Electric for $13,159.68, an amount which was then indisputably owing under the subcontract. Of the remaining $4,409.67 in issue, $3,000 represented the penalty for delay and the balance consisted of certain payments made by Concrete Systems for services which were allegedly the responsibility of Florida Electric. Following the final hearing, the court entered judgment for Florida Electric for $3,000 plus interest, attorney’s fees and costs.

On appeal, Concrete Systems contends that the court should have also credited against Florida Electric’s account the $3,000 penalty assessed by the Highlands County School Board. We agree. The evidence indisputably shows that the delay in completion from October 26,1978, to November 7, 1978, was entirely due to Florida Electric’s delay in furnishing the lighting. Florida Electric was not bound by the arbitration award, as such, because it was not a party to the arbitration. Yet, the amount of the award, as determined, serves as the measure of Concrete System’s damages. Since Concrete Systems was penalized $3,000 for the delay, it was entitled to recover this amount from the party which caused the delay.

The court’s ruling may have resulted from a misunderstanding of certain testimony that other subcontractors also contributed to the failure to finish the project by the time of the original completion date of August 23, 1978. However, Concrete Systems was only penalized for delay beyond October 26,1978, and there is no doubt that by that date all work except that to be performed by Florida Electric had been finished.

Accordingly, we reverse the judgment and remand for the entry of a new judgment reducing Florida Electric’s substantive claim by $3,000 and, in view of this reduction, recomputing the interest and attorney’s fees.

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


text:
    Kenneth CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-688.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand to strike from the order of probation revocation the finding that appellant violated his probation by failing to pay supervision costs. The state failed to present evidence establishing appellant’s ability to pay. Watkins v. State, 368 So.2d 363 (Fla. 2d DCA 1979). We, however, affirm the revocation order and judgment based on the trial court’s findings that appellant: (1) failed to submit monthly reports; (2) changed his residence without consent; and (3) was charged by information with burglary and armed robbery.

REMANDED.

OTT, C.J., and DANAHY and CAMPBELL, JJ., concur.


author: HOBSON, Judge.

text:
    David Lee HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1094.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.
    Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Asst. Atty. Gen., Tam-pa, for appellee.
   HOBSON, Judge.

David Lee Hayes appeals the denial of a motion to dismiss an information. We affirm.

The state filed an information charging appellant with escape from a juvenile detention center, a third-degree felony. Appellant filed a motion to dismiss the information, attacking the constitutionality of section 39.04(2)(e)4, Florida Statutes (1981). The trial court denied the motion. Appellant subsequently pled no contest but reserved his right to appeal the denial of his motion. The court thereupon adjudicated him guilty and sentenced him.

Our state supreme court held section 39.-04(2)(e)4, Florida Statutes (Supp.1978), constitutional in State v. Cain, 381 So.2d 1361 (Fla.1980). The 1978 statute which the court dealt with in Cain allowed a child charged with a misdemeanor or a felony to have the case transferred for adjudicatory proceedings as a child if he had not previously committed two delinquent acts. Appellant contends that Cain is not controlling here since section 39.04(2)(e)4, as amended by section 6, chapter 81-218, Laws of Florida, no longer permits a child charged with a felony to have the case transferred to the juvenile court even though he has not previously committed two delinquent acts.

Section 39.04(2)(e)4, Florida Statutes (1981) provides in relevant part:

(e) The state attorney shall in all cases have the right to take action, regardless of the action or lack of action of the intake officer, and shall determine the action which is in the best interest of the public and the child. The state attorney may:
4.With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of a child charged with a misdemeanor, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony;
.... (Emphasis added)

A juvenile does not have an inherent or constitutional right to treatment as a juvenile delinquent instead of as a criminal offender. Cain. A juvenile has the right to treatment as a juvenile delinquent only to the extent provided by our legislature. Id.; Art. I, § 15(b), Fla. Const. We believe that the legislature acted reasonably in amending section 39.04(2)(e)4 by eliminating the ability of a child charged with a felony to have his case transferred for adjudicatory proceedings as a child.

Accordingly, we affirm the trial court’s denial of appellant’s motion to dismiss the information.

AFFIRMED.

OTT, C.J., and SCHEB, J., concur.


text:
    James W. DONER and Carolyn Doner, his wife, Appellants, v. JAY BEE WATER EQUIPMENT, INC., Appellee.
    No. 82-1529.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.
    Thomas P. McAlvanah of Gibbs & McAl-vanah, P.A., Dade City, for appellants.
    Bruce A. Walkley of McClain, Walkley & Stuart, P.A., Tampa, for appellee.
   PER CURIAM.

This appeal is controlled by the opinion of our supreme court in Gulfstream Land & Development Corp. v. Wilkerson, 420 So.2d 587 (Fla.1982), which was issued subsequent to the court’s ruling below. Therefore, upon the authority of Gulfstream, we reverse the summary judgment and remand the case for further proceedings.

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


text:
    Kenneth Eugene PRESLEY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1701.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Kenneth Eugene Presley, Sr., pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence; however, we do so without prejudice to appellant’s right to seek relief by means of a motion pursuant to Florida Rule Criminal Procedure 3.850 on the ground that he was denied effective assistance of counsel.

OTT, C.J., and DANAHY and CAMPBELL, JJ., concur.