author: McCORD, Judge.

text:
    Travis Omar JONES a/k/a Travis Omar Lee, individually and through his mother and next friend, Josie Jones, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. ZZ-86.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied March 10, 1982.

      Stephen Maher, Miami, Legal Services of Greater Miami, Inc., for appellants.
    Steven W. Huss, Dept, of HRS, Tallahassee, for appellee.
   McCORD, Judge.

Appellants, a mother and child, appeal from an administrative order upholding the validity of Florida Administrative Code Rule 10D-49.17(5) as a valid exercise of delegated legislative authority. We affirm.

Rule 10D — 49.17(5) provides that if a mother was married to the father listed on the birth certificate of a child at the time of the birth, or if the marriage terminated within 10 months prior to the birth, paternity can be changed only by order of a court of competent jurisdiction. By request to appellee, the Department of HRS, appellants attempted to have appellee amend appellant child’s birth certificate which lists Nelson Jones, Jr., the mother’s ex-husband, as the child’s father. Appellants sought change of the birth certificate to reflect that Wilbert Lee is the child’s father. The mother was married to Jones at the time she gave birth to the child. However, with her request for the change, she submitted the final judgment of dissolution of her marriage to Jones, her own affidavit reciting that she had been separated from Jones for more than 10 months prior to the birth of the child, an affidavit from Lee acknowledging that he is the natural father of the child, and an affidavit from Jones acknowledging that he was not the natural father of the child. Appellee denied the request to amend the birth certificate on the basis of the challenged Rule, concluding that in the absence of a court order, it was without authority to so amend.

Appellants assert that the challenged rule is contrary to the intent of Chapter 382, Florida Statutes (1979). They contend that the purpose of Chapter 382 is to guarantee simplicity in the amendment of birth certificates, and the statute obviously did not intend to require uncontested paternity actions as a prerequisite to amendment where all concerned parties agree that the listed father is not the natural father and where the natural father acknowledges paternity. Appellants rely upon § 382.49, Florida Statutes (1979), which authorizes the state registrar “to correct any error of a general nature pertaining to date of birth, sex of child, or other information necessary to the issuance of birth certificate and to correct any error of a clerical nature. .. . ” Section 382.16(5), Florida Statutes (1979), however, provides as follows:

(a) If the mother was married at the time of conception, the name of her husband at such time shall be entered on the certificate as the father of the child, and the surname of the child shall be entered on the certificate as that of the husband, unless paternity has been determined otherwise by a court of competent jurisdiction.
(b) If the mother was not married at the time of conception, but is married at the time of birth, the name of her husband at the time of birth shall be entered on the certificate as the name of the father of the child, and the surname of the child shall be entered on the certificate as that of the husband, provided the husband gives consent in writing, unless paternity has been determined otherwise by a court of competent jurisdiction.

When we consider § 382.49 in pari materia with § 382.16(5)(a) and (b), it becomes apparent that the name of the child’s father which appears on the birth certificate in the case sub judice may not be changed without a court order. We have considered § 382.-21(5) which allows correction of any misstatement or errors occurring in a birth record upon “proof satisfactory to the registrar.” Under § 382.16(5)(a) and (b), however, the only proof that is statutorily permissible under the circumstances of this case is a court order.

Appellants contend that the challenged rule and the authorizing legislation are constitutionally defective because Chapter 382 does not contain adequate guidelines for the exercise of legislatively delegated authority. Contrary to this contention, the challenged rule is an explicit implementation of § 382.16(5)(a) and (b), and no further guidelines are necessary.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Andrew E. PURNELL, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AD-425.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied March 10, 1982.
    Andrew E. Purnell, pro se, for petitioner.
    Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole & Probation Commission, Tallahassee, for respondent.
   WENTWORTH, Judge.

This petition for writ of habeas corpus alleges that petitioner is entitled to a presumptive parole release date (hereinafter PPRD) of June 2, 1981, the date recommended by the hearing examiners since the Florida Parole and Probation Commission failed to notify him of his PPRD within 45 days of his initial parole interview. See § 947.16(4), Florida Statutes. Accordingly, the petitioner alleges that he is entitled to immediate release. For the reasons below, we find petitioner’s argument without merit and deny the petition.

On March 17,1981, petitioner received his initial parole interview and the hearing examiners recommended a PPRD of June 2, 1981. See § 947.172(2), Florida Statutes. The petition, filed more than 45 days after the initial interview, alleged that the Parole and Probation Commission had not yet established petitioner’s PPRD pursuant to § 947.16(4), Florida Statutes. Accordingly, this court issued a show cause order to the Parole and Probation Commission. The response to that order indicates that on May 13, 1981, prior to the time this petition was filed, the Parole and Probation Commission had established petitioner’s PPRD as June 30, 1988. Subsequently, the Parole and Probation Commission determined that petitioner should not be released until November 28, 1995. See § 947.18, Florida Statutes.

Petitioner relies upon James v. Florida Parole and Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981), for the proposition that the June 2,1981, date recommended by the hearing examiner is binding on the Parole and Probation Commission. Petitioner argues that the Parole and Probation Commission has violated § 947.16(4), Florida Statutes, and the rationale of James by applying aggravating factors more than 45 days after his initial interview. This argument is without merit. The rationale of James applies when the Parole and Probation Commission has set off indefinitely the establishment of an inmate’s PPRD for an impermissible reason, such as the lack of a pre-sentence investigation report, and when the Commission has not yet set a date for that inmate. We note that neither of these two conditions exists in the present case. The Parole and Probation Commission did not defer indefinitely the establishment of petitioner’s PPRD, and the Commission had established a PPRD for petitioner prior to the filing of this petition. Accordingly, petitioner’s reliance upon James is misplaced.

Petitioner’s remaining arguments are without merit. The petition for writ of habeas corpus is denied.

McCORD and LARRY G. SMITH, JJ., concur.


author: NESBITT, Judge.

text:
    Rogelio SOTO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2365.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.

      Sam W. Kleinfeld, Miami, for appellant.
    Jim Smith, Atty. Gen. and Leonard L. Elias, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   NESBITT, Judge.

Soto appeals the order denying his writ of habeas corpus and quashing the petition therefor which order remanded him to the custody of the State of Florida to abide his delivery to agents of the Governor of Virginia.

Our review of a habeas corpus proceeding is limited to a determination that the jurisdictional prerequisites to the issuance of his warrant exist. Moore v. State, 407 So.2d 991 (Fla.3d DCA 1981). In Sullivan v. State ex rel. Pardew, 49 So.2d 800 (Fla.1951), the prerequisites were set forth as follows:

(1) Whether petitioner was the person charged.
(2) Whether petitioner was substantially charged with a crime in the [demanding state].
(3) Whether petitioner was a fugitive from justice, section 941.03, F.S.A., or whether he committed an act in a third state which intentionally resulted in the commission of a crime in the demanding State, 941.06.
(4) Whether the indictment was certified as authentic by the Governor of the demanding State.

Soto contends that the trial court erred in entering the order denying him relief because the indictment which accompanied the requisition warrant failed to charge the defendant with having committed a crime in Florida or a third state which resulted in the commission of a crime in Virginia. Because this contention challenges the jurisdictional prerequisites to the issuance of a warrant, we can review the trial court’s order. We are compelled to agree on the authority of Ennist v. Baden, 158 Fla. 141, 28 So.2d 160 (1946).

Soto was charged by indictment in Virginia as follows:

COUNT I
Between May 7, 1980 and June 1, 1980 in the City of Colonial Heights: ROGO-LIO SOTO, did, unlawfully and feloniously conspire with another to possess with intent to distribute methaqualone (qua-lude).
COUNT II
Between May 7, 1980 and June 1, 1980 in the City of Colonial Heights: ROGO-LIO SÓTO, did, unlawfully and feloniously conspire with another to possess with intent to distribute marijuana.
COUNT III
Between May 7, 1980 and June 1, 1980 in the City of Colonial Heights: ROGO-LIO SOTO, did, unlawfully and feloniously conspire with another to possess with intent to distribute cocaine.

The alleged conspiracy took place while the defendant was in Florida and contacted an individual who was in Virginia.

Generally, the crime for which a fugitive is extradited is one which is committed in the demanding state. In addition, under Section 941.06, Florida Statutes (1979), a governor, on demand, may surrender a person charged with having committed an act intentionally resulting in a crime in the demanding state even though the accused was outside that state when the crime was committed. Clearly, the crime with which Soto is charged falls within the latter category.

In Ennist v. Baden, supra, the court discussed the contents of an indictment which would satisfy Sections 941.03 and 941.06, supra:

So, when the two sections [§§ 941.03 & 941.06, Fla.Stat. (1941) ] are read in paria materia they require that the person sought to be extradited shall be charged by indictment, information or affidavit with committing an act in this state or in a third state intentionally resulting in a crime in the state whose executive authority is making the demand.

28 So.2d at 162. The indictment in the present case fails under the Supreme Court’s decision in Ennist v. Baden, supra, and we are bound by that result.

Notwithstanding Ennist v. Baden, supra, the state seeks to support the order denying the writ of habeas corpus by urging us to look at other supporting papers in addition to the indictment.

The requisition warrant from Virginia and the rendition warrant from Florida contain the following pertinent language:

Whereas, It appears by application, indictment, etc. which are hereunto annexed and which I certify to be authentic and duly authenticated in accordance with the Laws of this State that ROGELIO SOTO, a/k/a ROGOLIO SOTO stands charged with the crime of 3 counts of conspiracy to possess with intent to distribute controlled drugs which I certify to be a crime under the Laws of this State committed in the State of Florida in that State. He committed acts in a State other than the State of Virginia ultimately resulting in the commission of a crime.

Also annexed to the requisition warrant was an affidavit of the Commonwealth’s prosecutor for the City of Colonial Heights which, in part, stated:

The full name of the fugitive for whom extradition is asked is Rogelio Soto, a/k/a Rogolio Soto, who was in the State of Florida and conspired by telephone with a person in this State at the time of the commission of said crimes.

The state argues that the practice around the country is to gauge the substance of the charge in light of all the supporting documents in order to determine the sufficiency and adequacy of the charge. It argues that a technicality should not be allowed to void an otherwise valid extradition. In Ex Parte Harrison, 568 S.W.2d 339 (Tex.Cr.App.1978), the court cited Ennist v. Baden, supra, as support for the appellant’s position, however, the court found that “the better practice is to judge the substance of the charge upon which the extradition is based by considering the ‘charging instrument’ in conjunction with the supporting requisition documents.” 568 S.W.2d at 342. Accord, Papas v. Brown, 88 Ill.App.3d 471, 43 Ill.Dec. 568, 410 N.E.2d 568 (1980); Greenbaum v. Darr, 220 Kan. 525, 552 P.2d 993 (1976); Kansas v. Holeb, 188 Neb. 319, 196 N.W.2d 387 (1972); In Re Cooper, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956, appeal dismissed and cert. denied, 364 U.S. 294, 81 S.Ct. 104, 5 L.Ed.2d 83 (1960); Ex Parte Arrington, 270 S.W.2d 39 (Mo.1954).

While we find this argument to be appealing, we are constrained by Ennist v. Baden, supra, to grant the writ of habeas corpus and discharge the petitioner from custody. Nonetheless, as provided for in Article V, Section 3(b)(4), Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we exercise our prerogative of certifying to the Supreme Court of Florida that the decision in this cause passes upon a question of great public importance, that is, the continued desirability of according to the Uniform Interstate Extradition Act, Chapter 941, Part 1, a more restrictive construction, as reflected by the decision of Ennist v. Baden, supra, than is accorded the Act by other courts of last resort.

The order denying the writ of habeas corpus and remanding the petitioner to the custody of the State of Florida is reversed with directions to grant the writ and discharge the petitioner from custody.


author: PER CURIAM.

text:
    Toney Hatfield McDonald KOENEMANN d/b/a McDonald’s Liquor Store and Lounge, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 81-1803.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 10, 1982.
    Black & Black and Robert J. Black, Coral Gables, for appellant.
    Harold F. X. Purnell, Tallahassee, for ap-pellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Glenn v. Department of Professional Regulation, 410 So.2d 935 (Fla. 3d DCA 1982); Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976).


text:
    Roger M. WEST, Appellant, v. Joel P. KALLAN, M. D., P. A., a Professional Association; Joel P. Kallan; and North Shore Hospital, a Florida corporation not for profit, Appellees.
    No. 81-534.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 10, 1982.
    McDermott, Will & Emery and Byron B. Mathews, Jr., Miami, for appellant.
    Joe N. Unger, Spence, Payne, Masington & Grossman, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.510(e); Morgan v. Continental Casualty Company, 382 So.2d 351 (Fla. 3d DCA 1980); Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969); Hunt v. Gerber, 166 So.2d 720 (Fla. 3d DCA 1964).


text:
    Barry ZETTLE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1145.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 10, 1982.
    Norman O’Rourke, Fort Lauderdale, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no reversible error and affirm. As to the appellant’s claim of error for failure of the trial court to instruct on penalties we affirm for the same reasons as those set out in our opinion issued today in the case of Miller v. State, 410 So.2d 557 Fla. 4th DCA, opinion filed 1982. For the same reasons discussed in Miller we certify the following question of great public importance to the Supreme Court:

May the harmless error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.


text:
    Johnnie Lee HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1496.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 10, 1982.
    Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the appellant’s conviction but vacate appellant’s sentence as an habitual offender and remand for resentencing with directions that the trial court make findings of fact in accordance with the requirements of the habitual offender statute. Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979).

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


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Von Dee GRAGG, Appellee.
    No. 80-1898.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ronald P. Gossett of Hodges, Gossett, McDonald & Gossett, P.A., Hollywood, for appellee.
   HERSEY, Judge.

The state appeals from an order dismissing one count of an Information filed against appellee. The basis for dismissal was application of the doctrine of collateral estoppel. We reverse.

This, apparently, is a case of first impression and presents a very troublesome issue. In order to gain an insight into that issue we consider first the procedural framework and then the factual background which gave rise to this problem at the trial court level.

The appellee was charged by Information with aggravated battery by use of a firearm (in Count I), possession of a firearm by a convicted felon (in Count II), and aggravated assault by use of a firearm (in Count III). Prior to trial, appellee filed a motion to sever Count II on the grounds that proof of a prior felony conviction, which was an essential element of the Count II offense, would be prejudicial to him in the trial of the other counts. The trial court granted this motion to sever.

The case went to trial on Counts I and III. Prior to reaching a verdict, the jury asked the following question: “[D]oes the defendant have to have a gun to be guilty of the information charge of aggravated assault, also aggravated battery.” Because the Information charged aggravated battery and aggravated assault by use of a deadly weapon, a firearm, the trial court instructed the jury that it would have to find that appellee used such a deadly weapon. The jury then returned a verdict of guilty of the lesser included offenses of battery and assault.

Appellee thereafter filed a motion to dismiss Count II of the Information on the basis that, by its verdict, the jury had determined that he did not possess a firearm on the evening in question, reasoning that under the principle of collateral estoppel, Count II should be dismissed. The trial court agreed and entered the order now on appeal.

The principle of collateral estoppel mandates that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. This rule of law is applicable in criminal cases as it is embodied in the Fifth Amendment guarantee against double jeopardy. Thus, when there is a previous general verdict, as is usually the case in criminal prosecutions, the court is required to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), quoting from Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39.

Appellee’s position here is that the issue of whether he possessed a firearm (an ultimate fact) was determined in his favor by the jury verdict in the first trial. Specifically, he argues that the jury verdict finding him guilty of battery and assault rather than battery with a deadly weapon (firearm) and assault with a deadly weapon (firearm) was based upon a determination that he did not have a firearm in his possession. This is evidenced, appellee maintains, by the jury questioning whether he had to have a gun to be guilty as charged in the Information. According to appellee, then, he cannot be tried for possession of a firearm because the issue of possession was previously determined in his favor and therefore the trial court’s ruling is correct.

To test appellee’s theory we review the evidentiary aspects of the “prior proceeding,” in this instance, the jury trial on Counts I and III.

The events which resulted in charges being filed against appellee began with a domestic dispute between Joe Harrison and Mary Smith. Harrison testified he had been living with Mary Smith for about six months and on May 5, 1980 he had decided to move out of her house. Before leaving, he got into an argument with Mary and a friend of hers, Debbie Woody. According to Mary and Debbie, Harrison hit Debbie, knocking her from a kitchen stool. As a result, Debbie Woody called appellee, who was a friend, and the police. The law enforcement officers arrived and remained at Mary Smith’s residence until Joe Harrison left. Harrison then returned to the residence to pick up his truck after arranging to have a friend, Margaret Raines, accompany him.

Upon arriving home, Harrison realized that he did not have his key so he went to a neighbor’s house to get the spare key. Harrison testified that while waiting at the neighbor’s door, he heard someone call his name. He turned, and saw appellee standing behind him with an arm raised in the air with a gun in his hand. According to Harrison, appellee was bringing his arm downwards to strike him. The neighbor testified that he had turned to go into the house and saw no one standing behind Harrison. At that point, according to Harrison, appellee jumped on him and pistol-whipped him. Harrison described the gun as a .32 or .38 chrome-plated revolver. He also testified that after beating him with the gun, appellee beat him with his fists. No one directly witnessed the fight or saw a gun. The treating physician stated that Harrison’s injuries were consistent with being hit with a blunt object, a gun or a ring.

Appellee admitted that he was involved in a fight with Harrison, but denied using or being in possession of a weapon, stating, however, that he was wearing rings on both of his hands. Appellee explained that a gun cleaning kit found in his car belonged to his wife and was probably left there from a time when he drove her to the shooting range. Mary Smith, who was with appellee when he went to Harrison’s residence, testified that she did not see a weapon in appellee’s possession at all throughout the evening.

The victim testified that immediately pri- or to being attacked by appellee he saw a gun in appellee’s right hand. Appellee then started hitting victim with the barrel of the gun. According to the victim, appellee jammed the barrel of the gun under his (victim’s) chin. The victim testified that, from looking at the barrel, he could identify the gun as a revolver. He further described the firearm as chrome-plated with a short barrel. Thus, there was more than sufficient evidence from which the jury could have concluded that appellee was in possession of a gun, but there was also evidence to support appellee’s contentions.

Failure of the jury to convict appellee of the gun-related offenses charged strongly suggests that they did not believe the testimony of certain witnesses. In any event, the jury clearly was presented with the issue of .whether appellee used a gun in perpetrating the assault and battery. It seems to us by necessary implication that the jury considered, and rejected, appellee’s possession of a gun. This is so because a rational jury, on these facts, could not have separated the two issues.

Further, we do not ascribe to the state’s view that the jury exercised its pardon power or acted out of compassion or through compromise, in the absence of a scintilla of evidence that the verdict resulted from one of those factors.

Without more, then, collateral estoppel would bar appellee’s prosecution on Count II. No question of jeopardy attaching has been or could be raised on these facts. See, e.g., State v. McCord, 402 So.2d 1147 (Fla.1981).

There remains for our consideration the state’s alternative position on appeal, to the effect that appellee is estopped from claiming application of the doctrine of collateral estoppel by his own actions. Put simply, appellee moved for severance of Count II in order to avoid prejudice at trial. He should not now escape prosecution on that count on the double jeopardy principle embodied in collateral estoppel. He, himself, should be estopped since jeopardy exists twice only because of his own actions.

We have been unable to find convincing authority on the precise issue involved here. However, in the closely related area of double jeopardy, the Supreme Court of the United States has applied estoppel under procedural facts similar to those with which we are confronted.

In Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), the Supreme Court held that although a defendant is normally entitled to have charges on greater and lesser offenses resolved in one proceeding, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), there is no violation of the double jeopardy clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election. Applying Jeffers to the instant case, the state argues that since the offenses were properly joined but appellee moved and persuaded the trial court to sever them, there is no violation of the double jeopardy clause to invoke the principle of collateral estoppel.

The charges against defendant were in fact properly joined because they were based on the same transaction or connected acts or transactions. Fla.R.Crim.P. 3.150(a). Thus appellee’s actions brought about the present situation involving the question of collateral estoppel. By logical extension Jeffers is authority for our present holding that appellee cannot now claim the benefit of collateral estoppel.

We are not unmindful of the argument that our holding may be said to penalize the appellee for the exercise of one constitutional right by denying another but, as in Jeffers, supra, we accept the logic but deny the equity of that argument here.

Accordingly, we reverse the order of the trial court dismissing Count II of the Information and remand for further appropriate proceedings.

Because we proceed by logical extension of a principle gleaned from federal precedent, necessitated by the virtual vacuum in Florida law on the point involved, we certify the following question to our supreme court as one of great public interest:

When a defendant successfully seeks severance for trial of one of several counts against him, will he be estopped later to assert collateral estoppel as a bar to prosecution on that count where it otherwise would be available.

REVERSED, REMANDED and QUESTION CERTIFIED.

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


text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. PALM BEACH WEST, INC., et al., Appellees.
    Nos. 81-196, 81-421.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.

      Alan E. DeSerio, Appellate Atty., Walter Kelly, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellant.
    David W. Foerster of Foerster & Hodge, Jacksonville, for appellee Mobil Oil Corp.
   PER CURIAM.

These are consolidated appeals from a final judgment and an order awarding attorneys fees entered upon an award in a condemnation proceeding. Over appellant’s objection, the trial court specifically instructed the jury that the jury could properly consider evidence regarding any impairment of access to the property of appel-lee, Mobil Oil Corporation, due to the construction of a median strip by the appellant. This instruction conflicts with the recent holding of the Florida Supreme Court in Division of Administration, State Department of Transportation v. Capital Plaza, Inc., 397 So.2d 682 (Fla.1981), a decision not available to the trial court at the time of trial.

The judgment and order awarding attorneys fees are hereby reversed with directions for further proceedings consistent herewith.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Hal H. McCAGHREN and Margaret C. Bowe, f/k/a Margaret C. Cribb, Appellants, v. Minnie B. CRIBB, individually and as the Personal Representative of the Estate of Cecil E. Cribb, and South Florida Title and Guaranty Company, as escrow agent, Appellees.
    No. 81-531.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Hal H. McCaghren of McCaghren Law Offices, West Palm Beach, for appellants.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED. See, e.g., Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1966); Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1964).

BERANEK, HERSEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    John F. WALSH, Appellant, v. Thomas W. FRENCH, et al., Appellees.
    No. 81-612.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.

      Edna L. Caruso and Schuler & Wilkerson, P. A., West Palm Beach, for appellant.
    Richard W. Groner of Moyle, Jones & Flanigan, P. A., West Palm Beach, for ap-pellees.
   DELL, Judge.

This is an appeal from a non-final order denying a petition for preliminary injunction. We affirm.

Appellant has failed to demonstrate the trial court abused its discretion in denying his petition for temporary injunction. Appellant failed to establish the essential criteria for a preliminary injunction, to wit: (1) irreparable harm; (2) a clear legal right; and (3) an inadequate remedy at law. Dania Jai-Alai International, Inc. v. Murua, 375 So.2d 57 (Fla. 4th DCA 1979); State Dept. of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).

The order denying plaintiff’s petition for temporary injunction is affirmed.

BERANEK and HERSEY, JJ., concur.


text:
    James FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-679.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellant was convicted of attempted first degree murder of Joe Rutkowski with a firearm (Count I), robbery with a firearm of Joe Rutkowski (Count II), aggravated battery with a firearm of Edward Thomas (Count IV), attempted robbery with a firearm of Edward Thomas (Count V), possession of a firearm in commission of attempted first degree murder (Count VI), and possession of a firearm in commission of aggravated battery (Count VII). He was adjudged guilty of each of those offenses, and was sentenced to serve 25 years in prison on Count I with a mandatory three year minimum. Three consecutive three year mandatory prison terms were imposed for appellant’s convictions of Counts II, IV and V for a total of a twelve year mandatory prison term. Five year prison sentences were imposed for Counts VI and VII, each to run concurrent. Appellant contends that Counts VI and VII are lesser included offenses of Counts I and IV and thus his conviction for Counts VI and VII and the five year sentences should be vacated and set aside.

Appellee concedes that the sentences which appellant received under Counts VI and VII (display of a firearm during the commission of a felony) should be vacated, but contends that the convictions under Counts VI and VII should stand. We agree. See, State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Monroe, 406 So.2d 1115 (Fla.1981).

AFFIRMED IN PART; REVERSED IN PART with instructions to the trial court to vacate the sentences for possession of a firearm during an aggravated battery and possession of a firearm during the course of attempted murder.

ANSTEAD and HERSEY, JJ., concur.


author: HURLEY, Judge. GREEN, OLIVER L., Associate Judge,

text:
    Nan G. BROWN, Appellant, v. Stewart Thomas BROWN, Appellee.
    No. 81-768.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Gary E. Southworth, Hollywood, for appellant.
    Paul V. DeBianchi, Fort Lauderdale, for appellee.
   HURLEY, Judge.

This is a child custody case in which we are asked to establish a priority between the tender years doctrine and the principle that children of divorced parents should be kept together in the same household. We apply the long-established rule that the prime consideration in child custody cases is the best interests of the individual child and, therefore, under the facts of this case, we conclude that the trial court erred by failing to apply the tender years doctrine.

Nan and Stewart Brown were divorced in 1981 after almost seventeen years of marriage. Their three children, Joel, Angela and Kara were 16, 14, and 3, respectively. It is undisputed that both Mr. and Mrs. Brown are fit, loving and nurturing parents. Although both sought custody of all three children, the trial court acceded to the older children’s wishes and placed them in their father’s custody. Kara, however, was placed in joint custody which, as defined by the court, means that she is to reside with her father and have visitation with her mother on alternate weekends and during the summer school recess. The trial court gave this explanation for its decision:

KARA BROWN was awarded to the Father during the school term for the sole reason of keeping the three siblings together in light of the older daughter, ANGELA BROWN’S affection for her sister, KARA.

We recognize the distinction between joint custody and a child’s primary residence and wish to note that joint custody is not at issue in this case. Indeed, where, as here, both parents are mature and responsible individuals, there is a great deal to be said for a custody arrangement which preserves the parental role of both parties and encourages shared responsibility and joint decision-making for the benefit of the child. Thus, our sole concern is whether the provision for Kara’s primary residence is a valid exercise of the trial court’s discretion. In this regard, we are keenly aware of the limitations which circumscribe our review. “[I]n a child custody proceeding, it is the function of the trial judge to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion.” Ross v. Ross, 321 So.2d 443, 444 (Fla. 3d DCA 1975).

The trial court’s order reflects a deep concern that the children remain together. This principle of non-separation is grounded in the recognition that there is often a bond of interdependence among siblings which, if left intact, can serve as a source of mutual support and can help to lessen the trauma of divorce. In Arons v. Arons, 94 So.2d 849 (Fla.1957), the court discussed the elemental underpinnings of this doctrine:

[CJhildren in a family should not be separated from each other and distributed about in different homes, except for the most compelling cause. For while brothers and sisters may not have a legal right to remain together, to share each others lives, and to grow up together, certainly they have a natural right to do so. Justice requires that society exercise its moral duty to insure that children in a family enjoy this right until such time as absolute necessity and the welfare of the children, itself, requires their separation.

Id., at 853.

At the same time, it is clear that the principle of non-separation “is not absolute and is subject to a determination as to what custody arrangement would be best for the [individual] child.” Collier v. Collier, 384 So.2d 697, 698 (Fla. 4th DCA 1980). Indeed, the case at bar exemplifies the need for individual evaluation. Here, the age differential between Kara and her two older siblings is particularly significant. Undoubtedly they love each other, but it is obvious that the nature of their relationship is affected by the substantial difference in their ages (16, 14 and 3). They are more like parent and child than brother and sister. Thus, while principles such as non-separation provide some guidance, it remains imperative that the court evaluate the singular needs of each child in determining the issue of custody.

Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975), reiterated the basic precept for determining custody of children of tender years:

While Fla.Stat. § 61.13(2), F.S.A., provides for equal consideration of the spouses in the award of custody, it is still the law in this State that, other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody.

Id., at 24. This principle was discussed in the case at bar by Dr. Burton Cahn, a psychiatrist who testified on behalf of the mother. He said:

From zero until four and a half, five years old, in the life of every child, the essential person in that child’s life is the mother. She is the nurturing person. (Tr. 164). I maintain it’s extremely important for her three year old little girl to be with her mother. Far more important, she’d be with the mother rather than the father. (Tr. 154). I would certainly have her take the three year old daughter. I think that’s essential. That’s vital. (Tr. 163).

Few issues are more difficult than the determination of a child’s custody when both parents are exceptionally fit and loving. The trial court recognized this dilemma and made a valiant effort to safeguard what was left of the family unit. Yet in doing so, we believe the court placed the good of the whole above that of the individual. Due to her young age, Kara has special needs which require independent evaluation. The court’s, order reflects that all factors are equal save for the fact that the two older children elected to live with their father. Although we can envision situations in which preservation of the family unit would be sufficient to tip the balance, we find that it is inadequate here. In light of the substantial age differential between Kara and her two older siblings, we hold that the principle of non-separation did not provide sufficient justification to avoid the tender years doctrine. Thus, the trial court erred when it declined to make the mother’s home Kara’s primary residence.

Accordingly, we affirm the final judgment in all respects except for those portions which establish the father’s home as Kara’s primary residence and which require the mother to pay child support. We remand the cause with instructions to make the mother’s home Kara’s primary residence and to reconsider the issue of child support in light of this change.

Affirmed in part and reversed in part and remanded with instructions.

GLICKSTEIN, J., concurs.

GREEN, OLIVER L., Associate Judge, dissents with opinion.

GREEN, OLIVER L., Associate Judge,

dissenting.

I respectfully dissent. The trial judge was faced with a close issue of custody. In my estimation, any decision would have been correct, or, at least, not fraught with reversible error.

Perhaps undue emphasis is being placed on the wording of the Final Judgment in which the trial judge is quoted as holding that the “sole reason” for awarding custody of Kara Brown (the youngest child) to the father during the school term, was so that the children would remain together. This factor may have been critical, but certainly did not constitute the sole reason. Contested custody decisions are seldom, if ever, that simple.

I would affirm the ruling of the trial judge.


author: BOARDMAN, Acting Chief Judge.

text:
    Joe H. ANDREWS, Appellant/Cross-Appellee, v. Becky V. ANDREWS, Appellee/Cross-Appellant.
    No. 81-526.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.

      Stephen C. Watson of Hahn, Breathitt, Roberts & Watson, Lakeland, for appellant/cross-appellee.
    Judith Ann Cutting, Lakeland, for appel-lee/cross-appellant.
   BOARDMAN, Acting Chief Judge.

The husband appeals and the wife cross-appeals an order of modification of the final judgment of dissolution of the parties’ marriage and a supplemental order modifying the order of modification. We reverse.

Final judgment of dissolution, which approved and incorporated the parties’ property settlement agreement by reference, was entered on May 1, 1979. An amended final judgment, specifying the monthly alimony award to the wife to be $1250, but ordering that all other provisions of the original final judgment were to remain in full force and effect, was entered on May 3, 1979.

The property settlement agreement purported to be a “settlement of all property rights, matters and all things between them arising out of the marriage.” It provided that the wife was to receive all furnishings and appliances (other than the husband’s personal property), ownership of the marital home, the 1976 Oldsmobile Regency automobile, two $1000 certificates of deposit, $9302 of the $28,867 in the parties’ IMCC credit union accounts, half of the parties’ U.S. savings bonds, the husband’s interest in two personal debts totalling $10,500 owed the parties by family members, half of the 1420 shares of IMCC stock owned by the parties, half of the husband’s $18,613.10 IMCC investment plan, a beneficial interest in the husband’s life insurance policies of one half their value up to $100,000, $15,000 per year permanent periodic alimony, payment of her share of the parties’ 1978 income tax liability by the husband, and control and ownership of an educational trust account for one of the parties’ children. The husband was to receive his personal property, the remainder of the funds in the IMCC credit union accounts, half of the parties’ U.S. savings bonds, half of the IMCC stock, half of his IMCC investment plan, and his stock in Phos-Chem. In addition, the wife was to pay her own attorney’s fees.

On July 1, 1980, the wife filed a petition for modification of her alimony award, alleging that both her needs and the husband’s ability to pay had substantially increased.

At the hearing on the wife’s petition for modification, the wife, age fifty-three, testified that during the marriage the husband paid all the bills and she was unaware of what it cost to maintain their household. She also knew nothing about their taxes or insurance, nor was she aware of the costs of their membership in the Lone Palm Country Club or of how much it cost her to play golf there. She had been unable to play golf at Lone Palm since the divorce because she could not afford it. She did not know she would have to pay income tax on her alimony. In addition, she had had to expend money for certain routine medical and dental expenses, which she had not thought to anticipate because the husband had always taken care of everything. She was reduced to a tight budget. Some of the items included in her financial affidavit, such as recreation, were things she was currently doing without, but felt were reasonable expenses. Although she was seeking attorney’s fees, she had the means to pay her attorney herself without invading her assets, and she had not had to liquidate any assets to maintain herself during the divorce. She had received a copy of a letter dated January 19, 1979, from her attorney to the husband’s attorney concerning the proposed property settlement agreement. That letter discussed, inter alia, the wife’s expected income tax and medical insurance liabilities. However, she testified, the contents of this letter meant nothing to her, and she did not have any independent recollection of what the letter discussed. The wife had completed her education through one year of college, but had not worked during the marriage except for the first year. She had tried to sell real estate after the dissolution, but had been unsuccessful and had given it up. She was not employed at the time of the hearing, but there were no impediments to her seeking employment other than her lack of experience.

The husband testified that he was currently grossing $1000 more per month than he had been at the time of the divorce. He had also received an additional $1000 more for the current year in incentive pay. Moreover, his income from his Phos-Chem stock had increased by $1000 per month. However, his current wife, who had been earning $15,000 per year, was no longer working. In the current year he had grossed about $60,000 as a result of exercising certain IMCC stock options and then selling the stock. At the time of the divorce, he retained net assets then valued at $110,000, including the stock options, then valued at $18,000. He stated at trial that the wife must have been aware of these stock options, since he had exercised some of them before the divorce.

The wife testified on rebuttal that she was not aware of the stock options prior to the dissolution and did not even know what the husband’s earnings were prior to or at the time of the divorce.

The husband then further testified that his financial position had changed from a net monthly surplus at the time of the divorce to a current net monthly deficit of $1918. However, his net worth had increased to $175,000, primarily due to an increase in the value of his stocks and bonds. The Phos-Chem stock option had not been considered at the time the property settlement agreement was drawn up. He could not recall why, but IMCC stock had gone up and down over the years, and it was only upon reconstructing his 1979 financial status in order to defend himself in the instant proceeding that he had discovered that the option had had some value at the time of the divorce.

Following the hearing, the trial court entered an order finding

that the evidence reflects an increase in the Wife’s needs over those contemplated at the time of the agreement between the parties dated March 27, 1979, and further that a substantial asset, the Husband’s stock options, was either not considered at the time of the aforesaid agreement or alternatively said asset resulted in a substantial change in the Husband’s financial position since March 27, 1979, and being otherwise fully advised in the premises, it is, therefore,

ORDERED AND ADJUDGED:

1. That the Husband shall pay to the Wife periodic alimony in the increased amount of $1,650.00 plus the Clerk’s fee of $2.00 for a total of $1,652.00 per month as periodic alimony.

The order also required the husband to pay the attorney’s fee incurred by the wife in these modification proceedings. The trial court then entered a supplemental order confirming its finding that the wife’s needs had substantially increased, but changing the monthly alimony award to $1400 as a result of “certain clerical and mathematical errors. . .. ” This appeal followed timely.

A party seeking to modify an alimony award fixed by agreement carries an exceptionally heavy burden. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977). As this court held in Tsavaris v. Tsavaris, 307 So.2d 845, 847 (Fla. 2d DCA), cert. denied, 322 So.2d 914 (Fla.1975), quoting from Scott v. Scott, 285 So.2d 423 (Fla.2d DCA 1973): “ ‘Where the amount of alimony is based upon agreement a heavier burden rests upon a party seeking a modification than would otherwise be required.’ ”

The wife here did not carry this burden. The expenses she claims have increased her need do not constitute a change in circumstances. These expenses were routine and such as to be expected by anyone of average intelligence and education. The wife here meets these qualifications, having had a year of college and there being no evidence that she has any mental incapacity. Moreover, the wife was represented by able counsel in the original dissolution proceeding, and the documentary evidence establishes that both she and her counsel were aware of her tax and insurance liabilities and that counsel took these factors into consideration in negotiating the settlement. We find it difficult to believe that the wife was quite as naive as she claims to have been. Even if she were, however, such naivete would not constitute a change in circumstances upon which to base an increase in her alimony award, particularly when she was represented by counsel at all stages of the property settlement negotiations.

In addition, the trial court erred in awarding the wife attorney’s fees when she was admittedly able to pay her own fees without invading her assets. “[W]hen a party has been shown to have the ability to pay for the services of his or her attorney, it is improper to require the other party to pay for those services, even though he or she may have the ability.” Butts v. Butts, 362 So.2d 349 (Fla.1st DCA 1978).

Accordingly, the original and supplemental orders modifying the alimony award to the wife and requiring the husband to pay the wife’s attorney’s fees are REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

DANAHY and SCHOONOVER, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Larry N. WALDRON, Appellant, v. CITY OF ARCADIA and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 81-1346.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.

      Mary Lee Hall and Grant Hanessian of Florida Rural Legal Services, Inc., Wauchu-la, for appellant.
    Robert K. Dixon, Arcadia, for appellee City of Arcadia; James R. Parks and Norman A. Blessing, Unemployment Appeals Commission, Tallahassee, for appellee Unemployment Appeals Commission.
   OTT, Acting Chief Judge.

Appellant’s appeal to the Unemployment Appeals Commission was dismissed on the ground that it was untimely filed. We reverse.

The procedure for filing an appeal is found in section 443.151(4)(b)3, Florida Statutes (1980), which provides:

The parties shall be promptly notified of such referee’s decision, and such decisions shall be final unless, within 20 days after the date of mailing of notice thereof to the party’s last-known address or, in the absence of such mailing, within 20 days after the delivery of such notice, further review is initiated pursuant to paragraph (c).

Section 443.151(4)(c) gives the commission the power to allow an appeal by any party.

The commission contends that the 20 days in the case sub judice began on February 9, 1981, as indicated by the statement of mailing found at the bottom of the referee’s decision. However, on page 1 of the notice, only one of the boxes to the right of the addresses of the claimant and employer is checked and marked “attorney.” It is unclear whether this refers to claimant’s attorney or employer’s attorney. No further evidence was offered to clarify or support the mailing or delivery of the notice to the appellant or his attorney. Further, the record contains sworn affidavits of appellant, his mother, and his attorney which establish that a copy of the referee’s decision was never received by mail or delivery until April 10, 1981. This evidence was uncon-tradicted. It is also noted that promptly upon receipt of such notice on April 10, 1981, appellant’s counsel filed a notice of appeal. We hold that the record before us does not contain competent and substantial evidence to support the commission’s conclusions that the appeal was untimely.

The facts in the case sub judice are quite similar to those in Teater v. Department of Commerce Board of Review, 370 So.2d 847 (Fla. 3d DCA 1979), wherein our sister court reached the same conclusion.

The order of the Unemployment Appeals Commission is REVERSED and REMANDED with directions that the appeal be received as timely filed.

CAMPBELL and SCHOONOVER, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Clyde BETHEA, Appellee.
    No. 81-1055.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Larry S. Hersch of Waller & Hersch, Dade City, for appellee.
   RYDER, Judge.

The state appeals from the dismissal of its information against Clyde Bethea, alleging the lower court erred in granting appel-lee Bethea’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We reverse.

The state charged appellee with carrying a concealed firearm. Appellee’s motion to dismiss alleged:

6. That the officer walked up to the side of the truck with the door open. That upon approaching the truck, the officer could see the butt of the gun immediately. That the approaching officer could see the gun in plain view and the gun was not under the seat but in front of the seat and the officer said you could probably have seen the whole gun if you had looked through the front of the truck, but he just had a side view of it from looking in the door of the truck.
7. The officer then testified he did not have to search for the gun.

Appellee’s attorney swore that the motion was true to the best of his knowledge and belief. The state filed a motion to strike the motion on the ground that it was not sufficiently sworn to. The court denied the motion to strike in that it did not fall within the purview of State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

On the date of the hearing on the motion to dismiss, the state filed a demurrer, adding the following facts:

1. The defendant stated to Deputy W. R. Smith of the Pasco County Sheriff’s Department that he had the pistol because he was coming back to his old town (Dade City) and had the gun for his own protection.
2. The pistol was held up and partially concealed by the carpet/rubber matting of the floorboard of the vehicle.
3. The pistol was not encased.
4. The pistol could not be seen at all without opening the vehicle door and only a small portion of the butt was observable by the deputy with the door open.

The trial court granted the motion, holding that as a matter of law the firearm was not concealed. The court relied on State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 748 (Fla.1975) and Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975).

We hold that the lower court erred in granting the motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) requires that the motion to dismiss be sworn to by one having direct knowledge of the facts asserted. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); see State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). The attestation of counsel below, that the motion was true to the best of his knowledge and belief, was inadequate to withstand summary dismissal.

Additionally, the motion filed below failed to show lack of a prima facie case. The facts tend to show that appellee had a firearm on the floor of his car. While the position and visibility of the gun are not disputed, it was disputed whether the firearm was concealed. The disputed question of concealment goes to the trier of fact, which should have been a jury below. State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973). The firearm need not be invisible to come within the statute’s meaning of concealment. Ensor v. State, 403 So.2d 349 (Fla.1981). The lower court thus inappropriately resolved the disputed fact of concealment in favor of appellee.

The grant of dismissal below is REVERSED and the case REMANDED for further proceedings.

SCHEB, C. J., and DANAHY, J., concur.


text:
    Thaddis B. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-663.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. However, the violation of condition (4) is stricken from the order of revocation of probation. This condition prohibits appellant from possessing a weapon or firearm, and there was no evidence produced to show that appellant had actual possession of any firearm.

HOBSON, Acting C. J., and OTT and CAMPBELL, JJ., concur.


text:
    C. A. T., D. M. S., C. A. S., M. J. L., G. J. M., W. W. K., T. R. J., C. J., D. J. B., C. M. D., B. A. J., K. L. P., C. A. H., J. R. J., R. L. F., N. A., A. L. W., W. D. W., J. T. R., Children, Appellants, v. STATE of Florida, Appellee.
    Case Nos. XX-104 to XX-109, XX-111, XX-112, XX-150, XX-168, XX-213 to XX-219, XX-329 and XX-377.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    James H. BRANNON, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-163.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.

      Michael E. Allen, Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Granting full review despite the untimely notice of appeal pursuant to Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1959), the decision of the trial court is affirmed on the authority of State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Wayne Martin RYKOSKEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. ZZ-175.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty.' Gen., Tallahassee, for appellee.
   PER CURIAM.

On 17 November 1980 the appellant was placed on probation with the condition that he repay three times the damage. This is illegal, Fresneda v. State, 347 So.2d 1021 (Fla.1977). On 16 December a notice of appeal was filed divesting the trial court of further jurisdiction, Kelly v. State, 359 So.2d 493 (Fla. 1st DCA 1978). The sentence is vacated and the cause is remanded for resentencing in accordance herewith.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Owen CALLOWAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AB-173.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.

      Steven L. Seliger, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals his conviction after trial by jury of disorderly intoxication and resisting arrest with violence and the trial court’s revocation of his probation. We affirm in part and reverse in part.

In his first point on appeal, appellant contends that the evidence was insufficient to support his convictions for disorderly intoxication and resisting arrest with violence. However, we find that the record contains sufficient evidence to support the jury’s conclusions, and we affirm as to that point.

In another point, appellant contends that certain remarks made by the prosecutor in closing argument violated his right to a fair and impartial trial. However, appellant did not move for a mistrial when the allegedly improper comment was made but, instead, waited until after retirement of the jury to make that motion. The motion was untimely, and, therefore, the objection was not properly preserved for appeal. See State v. Cumbie, 380 So.2d 1031 (Fla.1980), and Clark v. State, 363 So.2d 331 (Fla.1978).

Appellant’s remaining point on appeal does have merit. The record shows that on April 18, 1980, an affidavit for violation of probation was filed stating that appellant was in violation because he had failed to comply with Condition II of an order of probation entered on April 24, 1978, requiring that he pay the amount of $10 per month toward his supervision. An amended judgment in the record carrying the same case number as the original order of probation shows that on August 18, 1980, appellant’s probation was revoked, and sentence was entered on his 1978 plea of guilty to battery on a police officer. The only other mention of probation violation in the record is contained at the end of the sentencing hearing for the sentence imposed in the instant case. In that transcript, the court states merely that probation was violated and is revoked and appellant is, therefore, sentenced to five years to run concurrently with the sentence for the current convictions. No further elaboration was made. The court did not state on what basis it was revoking the probation, and it did not give appellant an opportunity to be heard. The record does not show that any evidence was presented in support of the affidavit charging probation violation. Although, on that date, an assistant public defender was representing appellant for the sentencing in the current case, the record does not show that the public defender was representing appellant on the probation revocation charge also. The essential elements necessary in a final revocation proceeding were not met in this case. § 948.-06, Fla.Stat. Also, compare Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Therefore, we reverse the probation revocation and the judgment and sentence based thereon.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

McCORD, ERVIN and SHAW, JJ., concur.


author: THOMPSON, Judge.

text:
    BUILDERS SPECIALTIES SUPPLY and the Maryland Casualty Company, Appellants, v. John R. COLE, Appellee.
    No. AB-436.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Bernard J. Zimmerman of Akerman, Sen-terfitt & Eidson, Orlando, for appellants.
    James A. Hightower of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) erred by awarding the appellee (“the claimant”) wage loss benefits prior to the stipulated date of maximum medical improvement (“MMI”). We agree the Deputy erred in this respect.

The claimant was involved in a compen-sable accident on November 2, 1979. In a pre-trial stipulation, the parties agreed that the claimant reached MMI on May 13, 1980. The Deputy awarded the claimant wage loss benefits from April 28, 1980 (the first date for which wage loss benefits were claimed) until December 27, 1980. The award of wage loss benefits for a period prior to MMI is clearly erroneous, as Section 440.15(3)(b)(l), Florida Statutes, authorizes payment of wage loss benefits only after a claimant reaches MMI.

We note, with disapproval, the de minim-is nature of this error which could have been corrected by the Deputy if proper and timely application had been made by the appellants. See Genuine Parts Company v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Company v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

The appellants also challenged the Deputy’s determination that the claimant conducted an adequate work search. We affirm on this point as there is competent substantial evidence to support this determination.

Accordingly, we amend the Order in this cause to commence wage loss benefits on May 14, 1980. As amended, the Order is AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


text:
    Arlene LEFFLER, Appellant, v. GRAND UNION COMPANY and Crawford & Company, Appellees.
    No. AB-500.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Robert H. Schott of Gamba, Junod & Schott, Palm City, for appellant.
    John L. Phillips of Magill & Reid, West Palm Beach, for appellees.
   McCORD, Judge.

The claimant presents the following points on this worker’s compensation appeal: (1) That the deputy commissioner erred in failing to take vacation and holiday pay into consideration when determining her average weekly wage; (2) That the deputy erred in finding that she had voluntarily limited her income from April, 1980, through September 7, 1980; (3) That the deputy erred in finding that she could have earned $99.20 per week if she had not limited her earnings; and, (4) That the deputy erred in failing to award penalties and interest. We affirm as to the first two issues and the deputy’s denial of penalties; however, we find merit in the other two arguments.

Claimant suffered a compensable injury to her right arm on November 9, 1979, at which time she was employed as a cashier at the Grand Union Grocery Store in Stuart, Florida. She reached maximum medical improvement as of March 12, 1980. However, she did not return to work until September 7, 1980, at which time she was offered a clerical job by Grand Union. She thereafter claimed wage loss benefits between March 12, 1980, and September 7, 1980, and an adjustment in the temporary total disability benefits received previously. Attorney’s fees, costs, and interest were also sought.

In his order the deputy made a specific finding, with which we agree, that the claimant had voluntarily limited her income by not conducting an adequate work search after the date of maximum medical improvement. This finding, in turn, triggers the provisions of Section 440.15(3)(b)(2), Florida Statutes (1979):

The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his or her income or {ails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. . . . (emphasis supplied)

Having found that the claimant had voluntarily limited her income by not obtaining work within her physical capabilities, the deputy concluded that she was capable of working at certain minimum wage ($3.10), light duty, thirty-two hours per week jobs available in the Stuart area. While finding that the claimant reasonably expected to work at Grand Union during March of 1980 and thus should receive her entire wage loss during that month, the deputy concluded that she would have earned $99.20 per week between April 1, 1980 and the date she returned to work at Grand Union. The thirty-two hours per week figure is apparently derived from the maximum number of hours per week the claimant had worked prior to her accident. However, there is no evidentiary support in the record for the finding that such minimum wage, light-duty, thirty-two hours per week jobs were available in the Stuart area.

While there may well have been such jobs available during the period in question, we find that it was error for the deputy to take judicial notice of the surrounding employment conditions. First, employment market conditions are not noticeable as generally known would allow him to take such notice. United States Sugar Corporation v. Hayes, 407 So.2d 1079 (Fla. 1st DCA 1982). Further, Section 90.-204, Florida Statutes (1979), requires that the parties be given a reasonable opportunity to “present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.” Such was not done here. Therefore, with the judicially noticed facts eliminated from consideration, the order does not contain sufficient evidence to support a finding that the claimant had voluntarily limited her income by the amount of $99.20 per week. On remand, the deputy shall hold hearings, receive evidence, and make such additional findings as may be necessary regarding economic and employment conditions as they relate to the claimant’s loss of earning capacity during the period in question.

Upon remand the deputy shall also assess interest for all untimely paid benefits. See Dixie Tile & Flooring v. Kish, IRC Order 2-3179 (1977), cert. denied 354 So.2d 980 (Fla.1977).

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

ERVIN and SHAW, JJ., concur.


text:
    C & B EQUIPMENT CO., INC. and Liberty Mutual Insurance Company, Appellants, v. William BATES, Appellee.
    No. AC-106.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.

      Patrick J. Malone of Beisler & Wells, West Palm Beach, for appellants.
    Philip S. Anderson of Anderson & Anderson, Fort Lauderdale, for appellee.
   PER CURIAM.

The order of the deputy commissioner is AFFIRMED except for reservation of jurisdiction “to adjudicate any and all issues . .. . ” When the final order disposes of all matters properly before the deputy, any reservation of jurisdiction should be restricted to a determination of taxable costs and attorney’s fees.

McCORD, ERVIN and SHAW, JJ., concur.


author: WIGGINTON, Judge.

text:
    CENVILL COMMUNITIES, INC., and Insurance Company of North America, Appellants, v. James A. BROWN, Appellee.
    No. AC-346.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.

      Randall J. DeHayes, West Palm Beach, for appellants.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellee.
   WIGGINTON, Judge.

The carrier appeals a workers’ compensation order, arguing that the deputy commissioner erred in awarding Brown temporary total disability benefits and attorney’s fees.

Brown suffered an injury on September 18, 1979, when he fell from a ladder while attempting to install a drop ceiling. The carrier acknowledged the accident as com-pensable.

The deputy commissioner did not err in failing to find Brown had reached maximum medical improvement. The doctor’s testimony relating to maximum medical improvement was, at best, equivocal. Further, the carrier never requested a determination of MMI, and it was not necessary for the deputy to reach this issue to resolve the points noticed for hearing.

Where rehabilitation is involved, the date of maximum medical improvement is artifically established by statute after the rehabilitation program has been completed. Section 440.49(l)(e), Florida Statutes (1979) provides that “the date of maximum medical improvement, for purposes of [determining appropriate wage-loss benefits], shall be no earlier than the last day for which such temporary disability benefits are paid.” The phrase “such temporary disability benefits” refers to the benefits that carriers are required to pay during a claimant’s rehabilitation.

The carrier agreed that because Brown was in a rehabilitation training course at the time of the hearing, it would resume payment of temporary total disability benefits pursuant to that statutory provision. The carrier cannot now argue that the date of maximum medical improvement was a previous date or that Brown should be estopped from receiving temporary total disability payments prior to his rehabilitation schooling for failure to apply for wage-loss benefits.

The carrier argues that a claimant does not qualify for rehabilitation program benefits until such time as he commences the classroom program. Claimant in this case began his efforts to enroll in a rehabilitation program more than five months before his school began. He was assigned to one counselor and referred to another who sought approval of a program by the carrier but was refused. Finally, a written program was approved by the carrier and implemented.

We cannot agree with the carrier’s position that the benefits should not be paid during this process. Section 440.49(l)(e) provides that:

temporary disability benefits paid pursuant to § 440.15(2)(a) and (4) shall include such period as may be reasonably required for training in the use of artificial members and appliances, and shall include such period as the employee may be receiving training or education under a rehabilitation program pursuant to paragraphs (l)(a) and (d).

The legislative intent is to have the claimant retrained in order that he again become productive. The mechanism requires that a carrier pay these school bills and further pay temporary total disability while the claimant is being rehabilitated. This must naturally include the period of counselling and program development necessary to the rehabilitative process. In this way, a claimant can maintain his family without the hardship that permanent impairment/wage-loss status might bring. The obvious intent is to insure that a claimant may devote his energies to the counselling and training program rather than being required to seek stop-gap employment for which he is conditionally suited.

Brown claimed an attorney’s fee because the employer/carrier controverted his claim. The deputy found that the employer/carrier were responsible for Brown’s attorney’s fee because they controverted his claim. He reserved jurisdiction to determine the amount at a subsequent proceeding. In his answer brief, Brown’s only argument is that he is entitled to an attorney’s fee because his claim was unsuccessfully controverted.

This was error. See Section 440.34(3)(b), Florida Statutes (1979) and (1980). At no time has Brown contended that the employer/carrier was guilty of bad faith nor would the record support this contention. It was necessary that Brown assert in his claim that the basis of his claim for an attorney’s fee was bad faith. After the hearing on the merits, the deputy could hold a separate hearing to determine the bad faith issue or the deputy could determine this at a later separate hearing. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981). But the deputy did not intend doing this as clearly expressed in his order nor does Brown contend the deputy intended doing this. The deputy merely intended to determine the amount of the attorney’s fee.

We therefore reverse the deputy’s award of attorney’s fees. Otherwise, the order is affirmed.

ROBERT P. SMITH, C. J., and MILLS, J., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Angelo LISAK, Appellee.
    No. 80-2119.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.

      Peter M. DeManio, Sarasota, for appellee.
   BOARDMAN, Judge.

The state appeals the trial court’s order granting appellee Angelo Lisak’s motion to dismiss the indictment against him and transferring the case to the juvenile division. We reverse.

Appellee was arrested on April 11, 1980, for an armed robbery committed on November 27, 1979. On April 16, 1980, a delinquency petition for this offense was filed against him.

On April 21, 1980, appellee appeared before the juvenile court, and Assistant Public Defender James Birkhold entered an admission to the petition on appellee’s behalf. Birkhold and Deputy Clerk Patricia Wood later testified that Assistant State Attorney Richard Brown was present at this hearing. The prosecutor said nothing during the proceeding. Birkhold laid a factual basis for appellee’s plea. Appellee himself said nothing, however. Mr. Smith from HRS agreed to have an oral predispositional report prepared by the next morning, and the matter was continued to the next morning.

The following day, Brown asked for a continuance because “there has been a conflict as to the boys [sic] age and we would like some additional time to investigate and subpoena some records to be sure before we proceed to disposition.” Brown further noted that the charged offense was a life felony and “we do have twenty one days, if we wish (inaudible).” The case was then continued until April 25,1980, “for the State to verify.” At the outset of the April 25,1980, hearing Brown announced: “Your Honor, at this time it’s the State’s intention to form a Grand Jury, uh, the first of next week under our authority under Florida Statute 29025C. This is a life felony.” Birkhold noted that appellee had already entered a plea, and the trial court agreed.

An indictment against appellee was filed on April 30, 1980, and the juvenile petition was apparently nolle prossed on May 2, 1980. On September 12,1980, appellee filed a motion to dismiss the indictment on the ground that he had already been charged with and pled guilty to the crime charged in the indictment. After hearing testimony and reviewing memoranda of law submitted by both sides, the trial court (criminal division) on November 10, 1980, entered the following order:

[I]t is the
FINDING OF THE COURT THAT:
1) The Defendant was properly before Court in the Juvenile Division on April 21, 1980;
2) The Defendant tendered a plea of guilty in open court in the Juvenile Division on April 21, 1980;
3) The Court in the Juvenile Division accepted the Defendant’s plea of guilty on April 21, 1980;
4) The Court in the Juvenile Division subsequently ordered a pre-disposition report as a consequence of accepting the Defendant’s plea of guilty; and
5) The Defendant was then ordered to return to Court in the Juvenile Division for disposition,
accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant has previously been placed in jeopardy and therefore the Defendant’s Motion to Dismiss is granted, and the Defendant is ordered transferred to Juvenile Division for further proceedings.

On November 20,1980, appellee was committed “to H.R.S. for the maximum period of time under the law but not beyond his nineteenth birthday.” This appeal followed timely.

Section 39.06(7), Florida Statutes (1979), gives the juvenile court general jurisdiction over all juveniles brought before the courts. However, Section 39.02(5)(c), Florida Statutes (1979), provides:

A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set forth in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, shall be dismissed. The child shall be tried and handled in every respect as if he were an adult:
No adjudicatory hearing shall be held within 21 days from the date that the child is taken into custody and charged with having committed an offense punishable by death or by life imprisonment unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented the case to the grand jury and the grand jury has returned a no true bill. If the court receives such a notice from the state attorney, or if the grand jury fails to act within the 21-day period, the court may proceed as otherwise authorized under this chapter.

(Emphasis added.) State v. Cain, 381 So.2d 1361 (Fla.1980), which involved another statutory exception to the juvenile court’s general jurisdiction over all juveniles, held that this exclusive general jurisdiction is expressly qualified to the extent of the statutory exceptions.

Appellee was arrested on April 11, 1980, so the twenty-one days during which no adjudicatory hearing could be held did not run until May 2, 1980. The hearing at which appellee attempted to enter his guilty plea was held on April 21, 1980. Following the rationale of State v. Cain, we hold that the trial court lacked jurisdiction to hold an adjudicatory hearing on that date.

Appellee argues that the entry of a guilty plea is not the equivalent of an adjudicatory hearing. The fifth district addressed that issue in McCarver v. State, 379 So.2d 979, 980-981 (Fla. 5th DCA 1980):

Sec. 39.01(23), F.S., defines “adjudicatory hearing” as “. . . a hearing at which the court makes its findings of fact and enters an appropriate order dismissing the case, withholding adjudication, or adjudicating the child to be a delinquent child ...” Rule 8.130 Fla.R.Juv.P. provides that at any hearing after the filing of the petition the child may enter a plea of guilty or nolo contendere and the Court “. .. shall not accept either plea without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is a factual basis for such plea.” Additionally, Rule 8.190 Fla.R. Juv.P., the caption of which is “adjudicatory hearings[,]” provides for the entry of a guilty plea at such hearing with the attendant interrogation by the Court concerning said plea and determination of the factual basis for it. The Court may then adjudicate the child delinquent or withhold adjudication. Thus it is obvious that, as found by the juvenile division, an adjudicatory hearing cbntemplates the taking of a guilty plea.

Logic dictates that a hearing at which a guilty plea is entered is an adjudicatory hearing under the juvenile statutes and rules.

McCarver went on to hold that jeopardy nevertheless attaches if an adjudicatory hearing is held by the juvenile court during the twenty-one-day period because the court has jurisdiction over the subject matter. We disagree. The McCarver court seems to take the position that the juvenile court either has jurisdiction or it does not. However, as State v. Cain makes clear, the juvenile court has general jurisdiction that is specifically limited during the twenty-one-day period following the juvenile’s arrest. During this period, the juvenile court has authority to take any action on the matter except adjudicate.

Since the entry and the juvenile court’s apparent acceptance of appellee’s guilty plea is an adjudication, this action by the juvenile court exceeded its authority and was void ab initio. To hold otherwise would permit the juvenile court to exercise jurisdiction expressly forbidden without recourse by the state. The legislative intent of Section 39.02(5)(c), to give the prosecutor adequate time to go before the grand jury, would also be frustrated. Thus a virtual race to the courthouse could result.

Since a void proceeding cannot be the basis for a double jeopardy claim, Tilghman v. Mayo, 82 So.2d 186 (Fla.1955), State v. Cox, 399 So.2d 1067 (Fla.2d DCA 1981), the trial court’s order granting appellee’s motion to dismiss the indictment and transferring the case to the juvenile division must be and is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . In view of our holding, we do not decide whether the trial court actually accepted appellee’s tendered plea or if such an acceptance would otherwise have been proper under the circumstances,


text:
    Gertrude MADRICT, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-19.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Madrict pled nolo contendere to the crime of carrying a concealed firearm contrary to § 790.01, Florida Statutes (1979), properly preserving her right to appeal. Her appeal presents two issues, relating to denial of a motion to suppress and motion for discharge under the speedy trial rule. We find no grounds for reversal.

Madrict was working as a convenience store clerk at approximately 1:00 a. m., March 5, 1980, when she summoned the police, complaining that a man was harassing her. After talking with the man and Madrict, the officers determined that no charges would be filed and began to get into the patrol ear with Madrict because they had agreed to take her home. At that point, the man shouted that Madrict had a pistol in her purse. When one of the officers asked Madrict if she could look in her purse, Madrict handed it to her and told her there was a gun inside. The officer looked in the purse, discovered a pistol and arrested Madrict for carrying a concealed firearm. Based on these facts, a motion to suppress the gun and the statement was filed. The motion was denied by the trial judge, who found that the alleged illegal search and seizure “was permissible under the Stop and Frisk Statute.”

On appeal, Madrict maintains that the motion was improperly denied because searching her purse under these circumstances was not an action which may be considered a “stop and frisk,” but instead is a search requiring probable cause. Appellant contends the shouted warning from the person in question did not establish probable cause for a search because of a conceded lack of knowledge of reliability.

We find the distinction between a “stop and frisk” and a search is academic in this case. It is clear from the facts as presented by appellant that she freely consented to the action taken. There is no suggestion that she was coerced into going with the officers, and we must therefore assume she voluntarily accepted a ride in the patrol car. Further, there is no evidence to support appellant’s contention that she complied with the officer’s request to look in her purse only because she believed that she had no other choice. On the contrary, the record indicates that Madrict promptly handed over the purse and volunteered the information that it contained a gun. These circumstances do not show the existence of a coercive atmosphere requiring that she be informed of her right to refuse the request. See Shapiro v. State, 390 So.2d 344, 348 (Fla.1980); cf., Correa v. State, 389 So.2d 1204 (Fla. 3d DCA 1980); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978).

The remaining argument by appellant is also without merit, and the conviction is affirmed.

ERVIN and ÍOANOS, JJ., concur.


text:
    Floyd LISTER and Corporate Group Service, Inc., Appellants, v. Lavere WALKER, Appellee.
    No. ZZ-227.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.

      Thomas J. Maida of McConnaughhay & Roland, Tallahassee, for appellants.
    Steve M. Watkins of Watkins, Hill & Marts, Tallahassee, for appellee.
   McCORD, Judge.

This is an appeal from a workers’ compensation order directing appellants to resume payment of permanent total disability benefits to appellee.

Appellee suffered amputation of the left leg above the knee as a result of an industrial accident in 1958. He was found to be permanently partially disabled by the deputy commissioner but ten years later was adjudged permanently totally disabled and was awarded benefits accordingly. At the time of the accident, appellant’s average weekly wage was $40 and his compensation $24 per week.

In March 1976 appellee was hired by the State of Florida at Fort Gadsden State Park in Gadsden County. His earnings in that employment are slightly over $300 per month. In June or July 1980 (the exact date is in dispute in the record) the appellants suspended payment of benefits on the ground, that appellee was working. Appel-lee filed a claim for resumption of benefits, and appellants defended the claim contending they are entitled to an offset under § 440.15(l)(d), Fla.Stat. (1975), from March 15, 1976, to the present. Appellants also contended that appellee is no longer permanently totally disabled. After hearing, the deputy commissioner found that appellee remained permanently totally disabled and that appellants were not entitled to a set-off because the above statute is substantive in nature and was not in effect at the time of appellee’s accident; that appellants were not entitled to unilaterally suspend payment of permanent total disability benefits. The deputy commissioner ordered a resumption of payment of permanent total disability benefits from the date the benefits were suspended.

As to whether or not appellee is permanently totally disabled, the record shows that he is 70 years of age, that his leg was amputated above the knee, that he has back problems and is in continuous pain, that he is unable to wear a prosthetic leg because of his medical condition involving tremors and jerking of the stump. His employment is as relief for the park ranger on the ranger’s day off. His duties consist of observing for fires and vandalism and patroling the park in the state vehicle which he can drive with his disability. He maintains an attendance count of park visitors and spends considerable time in a wheel chair in a picnic shelter which affords a good view of the major area of the park. His employment also involves cleaning the restrooms and picking up trash in the picnic area, but he and his wife live only one-fourth mile from the park and she performs for him these clean-up duties which entail only 30 minutes a day. There is competent substantial evidence in the record that, were it not for the job he has, his condition is such that he would not be employable in the open labor market. Thus, under the “odd-lot” doctrine, appellee remains permanently totally disabled. Professor Arthur Larson, in his treatise on the Law of Workmen’s Compensation, in discussing this doctrine says:

. . . Under the odd-lot doctrine, which is accepted in virtually every jurisdiction, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps.

Larson, Workmen’s Compensation Law, Vol. II, Section 57.51, pages 10-164.24, 10-164.49. Also compare Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960).

We consider now the question of whether or not Section 440.15(l)(d), Florida Statutes (1975), requires an off-set of appel-lee’s wages against his permanent total disability benefits. As previously stated, ap-pellee’s accident occurred in 1958, and he was found permanently partially disabled by the deputy commissioner. Section 440.-15(l)(d), Florida Statutes (1959), was enacted approximately one year after appellee’s injury but several years before appellee was adjudicated permanently totally disabled. It provides as follows:

If an employee who is being paid compensation for permanent total disability shall become rehabilitated to the extent that he shall establish an earning capacity by employment he shall be paid during the period of such employment, instead of the compensation provided in paragraph (a) [benefits for permanent total disability], 60 percent of the difference between his average weekly wages at the time the total disability was incurred and his wage-earning capacity as determined by his actual earnings in such employment.

Appellee contends that this statute is substantive and does not apply to him because it was enacted after his injury. Appellant contends that the statute is procedural and, therefore, does apply to appellee. It is unnecessary that we decide this question, however, because the statute applies only to permanent total disability. At the time it was enacted, appellee was not permanently totally disabled but was permanently partially disabled. Since his permanent total disability came about while the statute was in force, it is applicable to him and requires the off-set. Also, the off-set is self-executing, just as a social security off-set and an unemployment compensation off-set are self-executing. See Florida Power & Light Co. v. Adkins, 377 So.2d 57 (Fla. 1st DCA 1979), and Borden, Inc. v. Butler, 377 So.2d 795 (Fla. 1st DCA 1979). Section 440.-15(1)(d) was amended in 1979, effective August 1, 1979, but under neither the original law nor the amendment is appellee presently entitled to workers’ compensation benefits because he is now earning more than his average weekly wage at the time of his injury. Appellants were, therefore, correct in suspending payments, but appellants are not authorized to retroactively apply the off-set to recover past payments made to appellee. Florida Power & Light Co. v. Adkins, supra, and Borden, Inc. v. Butler, supra.

Affirmed in part and reversed in part.

ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.


text:
    Floyd LISTER, Corporate Group Service, Inc., and Certified Pulpwood Dealers Self-Insurance Fund, Appellants, v. Lavere WALKER, Appellee.
    No. AC-292.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Thomas J. Maida of McConnaughhay & Roland, Tallahassee, for appellants.
    Steve M. Watkins of Watkins, Hill & Marts, Tallahassee, for appellee.
   PER CURIAM.

This appeal is from an order directing appellants to pay workers’ compensation benefits to appellee pursuant to a deputy commissioner’s order directing such payments if this Court had not ruled upon the appeal of that order within 60 days from the trial court’s order. At the time the trial court entered its order, it did not have jurisdiction over the question of whether or not compensation should be paid to appellee because that question was before this Court on appeal from the deputy commissioner’s order. This Court has now ruled that compensation was not payable to appellee (Lister, et a1 v. Walker, (Fla. 1st DCA 1982). Case No. ZZ-227, opinion filed February 16, 1982.

Reversed.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.