author: COBB, Judge.

text:
    Paul McCRAY, Appellant, v. COUNTY OF VOLUSIA and Dr. Thomas C. Kelly, County Manager, Appellees.
    No. 80-1315.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    David A. Vukelja of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellant.
    Daniel R. Vaughen, Asst. County Atty., DeLand, for appellees.
   COBB, Judge.

The appellant McCray was discharged from his employment with Volusia County on the ground that he was physically unable to perform the normal tasks of his job as “auto service man.” This job basically entailed driving a tow truck and performing odd jobs around the county’s paint and body shop. McCray appealed his discharge to the Volusia County Personnel Board where testimony was taken. No transcript of the personnel board hearing is before this court, nor was it before the circuit court below. McCray contends on appeal that such transcript was not required in the absence of an order of the circuit court pursuant to Florida Rule of Appellate Procedure 9.100(g), which provides that a record shall not be transmitted to a circuit court unless ordered.

The personnel board, after the aforesaid hearing, unanimously found that McCray was physically unable to perform the duties of his position and unanimously recommended to the county manager that McCray’s termination be upheld. The county manager followed the Personnel Board’s recommendation, and did not reinstate McCray. Arguing that there was no competent substantial evidence to support the board’s and the city manager’s findings, McCray petitioned the Circuit Court of Vol-usia County for writ of certiorari to review the county manager’s decision. Finding that McCray’s petition failed to demonstrate a preliminary basis, for relief or a departure from the essential requirements of the law by either the personnel board or the county manager, the circuit court denied McCray’s petition. McCray now appeals that denial.

In considering by plenary appeal an order of the circuit court sitting in its certiorari review capacity, our review can be no broader than that of the lower court. Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981). The circuit court’s scope of review was to determine whether or not the appellees, the personnel board and the county manager, departed from essential requirements of law and whether or not their decision was supported by substantial evidence. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). We, therefore, must look at the petition filed below in the same manner and from the same perspective as did the circuit court.

The record before the circuit court — i. e., the petition and appendix — included an equivocal medical report stipulated into evidence before the personnel board, but did not include any portions of the testimony presented before the personnel board. Nothing in the appendix indicated the specific physical activities required for McCray’s job or the extent to which his existing physical impairment had previously interfered with his ability to perform those activities. The only “evidence” in regard to this point was Exhibits 7 and 8 of the appendix, a memo from the county’s safety director to the county’s public works director and a letter from the latter to McCray, respectively.

The memo indicated that McCray had completed an authorized employee physical examination and had been found to be medically acceptable for his present position, with the warning that he should “limit lifting, awkward.” The letter to McCray from the public works director noted this warning and stated that in the past several months McCray had “advised your supervisor of your limited physical restrictions when requested to do certain jobs.”

Obviously, the medical report, the memo, and the letter are ambivalent and inconclusive on the key issue decided by the personnel board: Could McCray, given his physical problem, properly perform his job? Florida Rule of Appellate Procedure 9.100(e) provides that when a petition seeks an order directed to a lower tribunal, the petition shall be accompanied by an appendix as prescribed by Rule 9.220. That rule states:

The purpose of an appendix is to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented.

By omitting from his appendix any testimony taken before the personnel board relative to the nature of his job and the effect of his physical impairment, McCray failed to present the circuit court with the “portions of the record” that would indicate whether or not the personnel board, hence the county manager, departed from essential requirements of law in discharging him.

Accordingly, the denial of the petition for certiorari by the circuit court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    The CITY OF ORLANDO, etc., Appellants, v. Charles J. CULLOM, et al., Appellees.
    No. 80-1305.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 7, 1981.
    Eli H. Subin, City Atty., and Michael S. Webb, Asst. City Atty., Orlando, for appellants.
    C. J. Cullom of Cullom & Cullom, Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a final order enjoining appellant from obstructing a street in Orlando and requiring the appellant to either compensate appellees for the past obstructions or restore the street to its prior configuration.

The city closed a street known as Wall Street and made a pedestrian mall and plaza of the area. The street before its demise looked like this and was a one-way street

headed westerly and was approximately 300 feet long. Parking was available to vehicles and traffic flowed from Orange Avenue to Court Avenue.

The plan for the mall which was constructed looked like this and as can be seen, effectively blocks the free flow of vehicular traffic, permits no vehicular parking and allows appellees and all others no right to vehicular access without special permit.

The question on appeal is whether the governmental authority took from these in-

dividual citizens a valuable property right for which the citizens are entitled to compensation. More succinctly, the question is whether the restriction of vehicular traffic past the point of appellees’ building is such a taking.

In answering the question, we consider the general proposition that the right of access to one’s property is a valuable right which cannot be taken without compensation. Even a serious diminishment is a taking and must be paid for. State v. Stubbs, 285 So.2d 1 (Fla.1973); Anhoco v. Dade, 144 So.2d 793 (Fla.1962); Pinellas County v. Austin, 323 So.2d 6 (Fla. 2d DCA 1975). However, before a landowner can be compensated for such a loss it must be shown he suffered damages peculiar to him and not common to the general public. Pinellas County, id. at 9.

As can be seen from the diagrams, appellees have lost some right to free flow of vehicular travel past their building and parking has been eliminated along this stretch of Wall Street but they still have access to their property and it has not been seriously diminished, as in Stubbs, Anhoco and Pinellas County. It was said in Pinel-las County: “The fact that a person loses his most convenient method of access is not such damage which is different in kind from damages sustained by the community at large where his property has suitable access from another street even though the alternate route is longer.” 323 So.2d at 8.

We can find no statute or case law which says abutting property owners have a valuable right to parking spaces in the street they abut. This restriction on parking in a particular street is not a deprivation of a property right for which appellees are entitled to compensation. Rather, as noted in numerous other jurisdictions, a municipality may prohibit parking on its street as an exercise of its police power. City of Phoenix v. Wade, 5 Ariz.App. 505, 428 P.2d 450 (1967); Snyder v. State, 92 Idaho 175, 438 P.2d 920 (1968); Triplett v. City of Corbin, 269 S.W.2d 188 (Ky.1954); Thomas & Warner, Inc. v. City of New Orleans, 230 La. 1024, 89 So.2d 885 (1956); Farnsworth v. City of Roswell, 63 N.M. 195, 315 P.2d 839 (1957).

Our Supreme Court has just answered the question as to whether a landowner has a compensable interest in traffic flow. Division of Administration v. Capital Plaza, 397 So.2d 682 (Fla.1981). In that case, the government had prevented northbound traffic from entering the landowner’s service station by the construction of a solid median down the center of the highway. In that case the court held “that landowners have no compensable interest in traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from a taking.”

In the face of that decision we have no choice but to reverse the order.

REVERSED.

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

      . By city ordinance a special permit is available to appellees and others if a need is demonstrated.


author: ORFINGER, Judge.

text:
    Gregory MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 80-269.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied July 7, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted by a jury of first degree burglary and he appeals, contending that the evidence is legally insufficient to sustain the higher degree of the crime. We affirm.

Burglary of a dwelling is normally a felony of the second degree, but section 810.-02(2)(b), Florida Statutes (1979), makes it a felony of the first degree when the perpetrator is armed or arms himself during the burglary.

The evidence reveals that during the course of the burglary appellant’s co-participant found a shotgun in the burglarized home, and appellant found a box of shotgun shells. While still in the home, appellant took possession of the shotgun. While at that point appellant had the ability to load the gun, he made no attempt to do so until he and his companion had left the house. They later loaded the shotgun and test fired it.

Appellant contends that an unarmed burglary, a second degree felony, cannot be elevated to a felony of the first degree when the evidence shows that the perpetrator steals an unloaded gun in the course of the crime. He relies on Wilson v. State, 378 So.2d 1258 (Fla. 1st DCA 1979), quashed on other grounds 395 So.2d 520 (Fla.1981), and Sanders v. State, 352 So.2d 1187 (Fla. 1st DCA 1977), cert. denied 362 So.2d 1056 (Fla.1978).

In both Wilson and Sanders, the court commented that the mere showing of a theft of a gun after entering a structure, standing alone, is insufficient to establish burglary armed with a dangerous weapon. There is nothing in either opinion to inform us if the gun involved was loaded.

Other courts considering analogous questions have sustained the charge. In Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979), the court affirmed the conviction of the crime of armed burglary where the appellant was caught in the act of burglarizing the house while in the possession of a shotgun and a pistol belonging to the victim of the burglary. At the time appellant took the weapons, they were unloaded, but at the time of his apprehension, both were loaded. The court noted the holding in Sanders, but also noted the language in that case that the theft of a gun, standing alone, did not elevate the degree of the crime.

In State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1975), the Fourth District Court of Appeal rejected the argument that the theft of a loaded pistol during the commission of a breaking and entering without any further showing of intent or willingness to use such weapon in furtherance of the crime does not constitute armed burglary. The appellant had stolen a loaded pistol which belonged to the owner of the burglarized dwelling. The court reasoned: “A loaded pistol is a dangerous weapon and to take possession thereof is to arm oneself.” Id. at 645.

In agreeing with Fowler and Dopson, as we do, we do not necessarily disagree with Sanders, because the latter case does not advise us if the weapon was loaded when in the possession of the burglar. But agreeing with Fowler and Dopson does not resolve the issue. We must determine if a burglar arms himself within the meaning of the statute when, during the course of a burglary, he steals an unloaded firearm and the shells that fit it, although he does not load the weapon .while he is in the house. We hold that under these facts he has armed himself.

It is clear that under the facts of this case, as found by the jury, appellant had the ability at any time during the burglary and after he had possession of the shotgun and the shells, to insert the shells and make use of the weapon. Under Fowler and Dop-son, if he had loaded the weapon, he would be considered armed. Is he any less armed merely because he carries the shells separate from the weapon? Would he be less armed if he had brought the shotgun or another firearm with him, keeping the shells handy in his pocket? Once the shotgun and the shells were united in appellant’s possession, he had the capacity to use the weapon by the mere expediency of inserting one or more shells, and thereby commit the violent act the statute seeks to proscribe. For the purpose of this statute he had thus armed himself.

The judgment of conviction is AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . Section 810.02(2): Burglary is a felony of the first degree ... if, in the course of committing the offense, the offender: (b) is armed, or arms himself within such structure, with explosives or a dangerous weapon.


author: HURLEY, Judge.

text:
    Dorothie C. GOSS, Appellant, v. Frank L. GOSS, Appellee.
    No. 79-660.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 24, 1981.
    V. Craig McCaghren of McCaghren Law Offices, West Palm Beach, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   HURLEY, Judge.

On this appeal, appellant/wife argues that she should have been awarded permanent rather than rehabilitative alimony. We agree and therefore reverse.

Mr. and Mrs. Goss were divorced in 1979 after thirty years of marriage. At the time of the dissolution, Mrs. Goss was fifty-two years old, had been a homemaker for twenty-nine years, had raised three children, and had an eleventh grade education. As for work experience, Mrs. Goss testified that she had last worked twenty-nine years ago and then had held only menial jobs such as working at “a soda fountain, ... a garment factory, and ... a battery factory.” Since filing for dissolution, she had unsuccessfully sought employment with nine different employers, but had to settle for babysitting or sewing positions which produced meager income. She described her health as poor, saying that she had “a bad back, high blood pressure and nervous conditions.”

Given these facts, we find that the trial court abused its discretion in failing to award permanent alimony. See Colucci v. Colucci, 392 So.2d 577 (Fla.3d DCA 1980). Thus, we reverse the order on appeal and remand the cause with instructions to enter an award of permanent alimony based upon the needs of appellant and upon the ability of appellee to provide for those needs. Niemann v. Niemann, 294 So.2d 415 (Fla.4th DCA 1974). cert. dismissed, 312 So.2d 733 (Fla.1975).

With respect to the authority of the trial court on remand, we adopt the following principle announced by our sister court in Eagan v. Eagan, 392 So.2d 988, 990 (Fla.5th DCA 1981):

In Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980), our Supreme Court observed that in a dissolution cases apportioning assets and providing necessary support are difficult problems and that the various procedural remedies which the trial court can use to solve these problems are interrelated and, from the trial judge’s viewpoint, are generally all part of one overall scheme. It follows, therefore, that when a trial judge is found to be in error as to some aspect of his disposition the cause should be remanded with sufficient authority that he may again exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties in view of the changes required by the appellate opinion.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

LETTS, C.J., and MOORE, J., concur.


author: FERGUSON, Judge.

text:
    Lewis B. HAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-492.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 23, 1981.

      Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   FERGUSON, Judge.

From a conviction and sentence for second degree murder and robbery with a deadly weapon defendant appeals asserting three points as error:

(1) The denial of his challenge to the panel of prospective jurors where unlawful excusal forms were mailed to the jurors;
(2) the denial of a motion for mistrial where the police officer, in the presence of the jury, commented on the defendant’s exercise of his right to remain silent;
(3)the court’s entry of an order, after the time of sentencing, retaining jurisdiction over the defendant and failing to state the justification for the retention.

On examination of the record we find the first point to be without merit.

The police officer was called to the witness stand by the prosecutor. The officer testified that he advised the defendant of his constitutional rights, then asked him if he would answer questions without having an attorney present, and that in response defendant “denied any knowledge of the incident.” Defendant was taken to the police station where he gave a stenographically-recorded and signed confession.

Defendant’s free and voluntary denial of knowledge of the matter being inquired into, after being advised of his right to remain silent, was not an invocation of the Fifth Amendment privilege against incrimination. Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977), cert. dismissed, 372 So.2d 64 (Fla. 1979). The record before us demonstrates that defendant was afforded the opportunity but never exercised his right to remain silent. Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978), cert. denied, 365 So.2d 714 (Fla. 1978). A crucial aspect of the testimony challenged herein is that it was not elicited to show defendant’s assertion of his right to remain silent. Kellerman v. State, 353 So.2d 901 (Fla. 3d DCA 1977) (Nathan, J. specially concurring), aff’d on remand, 366 So.2d 824 (Fla. 3d DCA 1979). No reversible error is shown.

It is undisputed that when defendant was sentenced on January 25, 1980 the trial court did not mention retaining jurisdiction. The court did announce retention of jurisdiction three weeks later. The recorded judgment and sentence contain a handwritten notation initialed and dated February 4, 1980, that the “court retains jurisdiction on this matter”.

Section 947.16(3) Florida Statutes (1979) states in pertinent part:

Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of [enumerated felonies] . .., at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order . . . (emphasis added).

A court may reduce or modify a legal sentence within sixty days after such imposition, after which it is without jurisdiction. Fla.R.Crim.P. 3.800. But the rule is subject to constitutional limitations. Where a final conclusive judgment and sentence has been pronounced, the court may not recall the case and enhance the sentence for the reason that to do so subjects the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution. See, e.g., Troupe v. Rowe, 283 So.2d 857 (Fla. 1973); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976). Section 947.16(3) gives a trial court veto power over parole and thus has the effect of enhancement of a sentence. State v. Williams, 397 So.2d 663, (Fla. 1981). After defendant had been sentenced the trial court was without jurisdiction to retain jurisdiction for the purpose of reviewing a parole commission release order.

The conviction and sentence are affirmed except that the modification whereby the court purports to retain jurisdiction is reversed. We remand to the trial court for the purpose of correcting the sentence accordingly.


author: BASKIN, Judge.

text:
    J. R. CARTER d/b/a Conch Country Real Estate, Appellant, v. George H. DeCARION, Raymond V. Long, Jr. and Knox Wolaver d/b/a Buttonwood Bay Associates, Appellees.
    No. 80-1024.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 23, 1981.

      Wright & Silverio and Mark V. Silverio, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

J. R. Carter d/b/a Conch Country Real Estate appeals an order of dismissal for failure to prosecute. We affirm.

The last record activity undertaken by appellant prior to the filing of appellees’ Motion to Dismiss was a Motion for Protective Order filed on August 14,1978. Subsequently, appellees filed a Motion to Dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e), alleging the absence of record activity for a period in excess of a year. The motion bore the stamp of the Monroe County Clerk and was clocked in on September 11,1979 at 11:02 a. m. On the same day, appellant filed a Notice of Taking Deposition which was stamped in by the clerk at 4:33 p. m.

On March 27, 1980, after conducting a hearing, the court entered an Order of Dismissal. At the hearing, appellant sought to establish that it had filed its Notice of Taking Deposition the day before the date indicated by the clerk’s stamp. Appellant argued that even if filed the same day as the Motion to Dismiss, the Notice of Taking Deposition constituted record activity precluding dismissal.

Appellant contends that the trial court abused its discretion in dismissing the cause. According to appellant, the Notice of Taking Deposition precluded dismissal, but if it did not constitute record activity, then good cause to thwart dismissal was shown by settlement negotiations and difficulties involved in obtaining counsel. We disagree.

Rule 1.420(e) is not self-executing. The rule requires the filing of a Motion to Dismiss or action by the court before a cause may be dismissed, Shalabey v. Memorial Hospital of the South Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971), cert. denied, 257 So.2d 562 (Fla.1972), and such action must be undertaken before there is any further prosecution of the cause, Pollack v. Pollock, 110 So.2d 474 (Fla. 1st DCA), cert. denied, 116 So.2d 761 (Fla.1959). A party is required to show either active prosecution within the preceding year or good cause for his failure to prosecute to avert dismissal of the cause. Chrysler Leasing Corp. v. Passacantilli, 259 So.2d 1 (Fla.1972); Ace Delivery Service, Inc. v. Pickett, 274 So.2d 15 (Fla. 2d DCA 1973); Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972), cert. denied, 274 So.2d 237 (Fla.1973). It is apparent that appellant’s Notice of Taking Deposition, filed on the same day as appellees’ Motion to Dismiss, was not filed within the preceding year. The trial court therefore properly exercised its discretion and granted the Motion to Dismiss.

Appellant’s argument that the actual filing date occurred the day before the Motion to Dismiss was filed lacks merit. The trial court heard testimony from the clerk and concluded as a matter of fact that filing occurred on the date stamped. We find no error in the trial court’s finding.

Appellant urges two reasons for us to find that dismissal was precluded by its showing of good cause for failure to prosecute. It contends that settlement negotiations between the parties and the necessity of substituting counsel for appellant constituted good cause. Neither settlement negotiations, Steisel v. Birnholz, 313 So.2d 125 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 14 (Fla.1976); Lindquist v. Williams, 262 So.2d 899 (Fla. 2d DCA 1972), nor problems in obtaining counsel constitute good cause. Cf. Florida Power & Light Co. v. Gilman, 280 So.2d 15 (Fla. 3d DCA 1973) (neither change of attorneys nor office error by attorney constitute good cause).

Appellant has failed to demonstrate an abuse of discretion by the trial court; we therefore affirm the dismissal.

      . Fla.R.Civ.P. 1.420(e):
      Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.


text:
    Josephine HILGENHURST, Appellant, v. KNIGHT-RIDDER NEWSPAPER, INC. and Travelers Indemnity Company of America, Appellees.
    No. 80-1036.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 24, 1981.
    Horton, Perse & Ginsberg and Edward A. Perse, Murray P. Yanks, Miami, for appellant.
    Adams & Ward and Robert C. Ward, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

In accordance with our finding that ap-pellees exercised reasonable care and that no breach of duty, Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), was established by appellees’ failure to maintain crowd control at a theater with unreserved seating, we affirm the Final Judgment for Defendants entered by the trial court when it granted motions for directed verdict and vacated the verdict returned by the jury. The evidence discloses no actual or constructive knowledge, which might have arisen from prior conduct, of risk to the theater patron who was knocked down and injured at Gusman Hall as she walked to her seat to watch a silent movie.

The operator of a place of public entertainment owes his invitees the duty to use due care to maintain his premises in a reasonably safe condition commensurate with the activities conducted thereon. Central Theatres, Inc. v. Wilkinson, 1944, 154 Fla. 589, 18 So.2d 755; Wells v. Palm Beach Kennel Club, 1948, 160 Fla. 502, 35 So.2d 720. This includes a duty to exercise reasonable care to supervise the patrons for the purpose of preventing injuries the risk of which was known to the operator or by the exercise of reasonable care should have been known to him. Central Theatres, Inc., v. Wilkinson, supra, and Sparks v. Ober, Fla.App. 1968, 192 So.2d 81. The duty to supervise does not, however, require the operator to furnish each patron with an usher or to guard against the risk created by a specific patron, unless the operator has actual or constructive knowledge of the need for specific supervision and a reasonable opportunity to exercise it. Elmore v. Sones, Fla.App. 1962,140 So.2d 59; Wometco Theatres Corporation v. Rath, Fla.App. 1960, 123 So.2d 472. Otherwise, the operator would be in the position of an insuror [sic] of the safety of his patrons.

Warner v. Florida Jai Alai, Inc., supra at 778.

The court correctly set aside the verdict and entered judgment, Panoz v. Gulf and Bay Corp. of Sarasota, 208 So.2d 297 (Fla. 2d DCA), cert. denied, 218 So.2d 166 (Fla. 1968).

Affirmed.


text:
    PRESTON CARROLL COMPANY, INC., Appellant, v. FLORIDA KEYS AQUEDUCT AUTHORITY, Appellee.
    No. 80-2215.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Rehearing Denied July 23, 1981.
    Saveli, Williams, Cox & Angel and William E. Turnipseed, Atlanta, Ga., Podhurst, Orseck & Parks and Barry L. Meadows, Miami, for appellant.
    Enrique Arroyo, Coral Gables, and Thomas J. Schwartz, West Palm Beach, for appel-lee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

Preston Carroll Company, Inc., unsuccessful bidder for a water supply contract, chai-lenges an Order of the Florida Keys Aqueduct Authority (FKAA) denying Preston Carroll’s protest pursuant to section 120.57, Florida Statutes (1979) of the award of the contract to another bidder, Iacobelli-Ferr-era. We do not reach the merits of appellant’s argument, however, because we find that appellant lacked standing to challenge the award of the contract.

In order to contest the award of a public contract to an apparent low bidder, appellant was required to establish that it had a “substantial interest” to be determined by the agency. A second lowest bid establishes that substantial interest. See Jets Services, Inc. v. Hoffman, 420 F.Supp. 1300 (M.D.Fla.1976); Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 184 (Fla. 1st DCA 1978); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971); § 120.57, Fla.Stat. (1979). In an effort to meet the standing requirement, Preston Carroll maintained that it produced the lowest bid and that FKAA’s determination that CFW Construction Co., Inc. was the second low bidder was erroneous because CFW extended “deduct” provisions to its alternate bid after bidding had been closed. The unrefuted testimony presented by professional engineer and project coordinator MacVicar disclosed, however, that at the time apparent low bidders were decided CFW’s bid, which included “deducts”, was the second lowest bid. Relying on Mr. Mac Vicar’s expertise in evaluating bids, the Board of Directors of the Florida Keys Aqueduct Authority determined that the “deduct” offered by CFW applied at all times not only to its base bid but also to its alternate bid and that no change in its bid occurred after the bids were opened. This court may not substitute its judgment for an agency’s judgment concerning the weight of evidence. § 120.-68(10), Fla.Stat. (1979).

For these reasons, we hold that Preston Carroll, as third low bidder, was unable to demonstrate that it was substantially affected; it therefore lacked standing to protest the award of the contract to another bidder. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Peterson v. Florida Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980); Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla. 1978).

Affirmed.


text:
    Gregg John DeSANTIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-655.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.

      Gregg John DeSantis, in pro. per.
    No appearance for appellee.
   DAUKSCH, Chief Judge.

This matter is before us to review an order denying relief requested under Florida Rule of Criminal Procedure 3.850. We have said over and over what is required under that rule and with a reading of the rule itself it is quite apparent the order denying relief requires “In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively show that the prisoner is entitled to no relief shall be attached to the order.” Rule 3.850, Fla.R. Crim.P. Benton v. State, 401 So.2d 1114 (Fla. 5th DCA, 1981) [1981 F.L.W. 765]; Rice v. State, 400 So.2d 461 (Fla. 5th DCA, 1980); Brown v. State, 390 So.2d 447 (Fla. 5th DCA 1980); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980).

The motion of appellant is sufficient on its face and seeks to correct what appellant says is an illegal sentence under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). The fact that appellant, proceeding without a lawyer, says he is entitled to relief under Florida Rule of Criminal Procedure 3.800 (rather than 3.850), does not give the court authority to deny a request to correct an illegal sentence both because Rule 3.800(a) gives the trial court the authority to at any time correct an illegal sentence and because the court can on its own decide the proper rule to use to correct the sentence. In this case the most proper rule would be Rule 3.850 because it requires the court to correct the illegal sentence.

The appellant has furnished us with a copy of a judgment which shows he was sentenced to two years imprisonment and three years probation for the crime of grand theft. If this is the judgment and sentence in this case, as it appears to be, then appellant is entitled to immediate relief. Therefore we reverse the order denying relief and remand this matter to the trial court for further consideration. We also note the order denying relief fails to “include a statement that the movant has the right to appeal . . . the order” as required in the rule.

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.


author: PER CURIAM.

text:
    NATIONAL MERCHANDISE CO., INC., d/b/a Pic-N-Save Drugs, and Maryland Casualty Company, Appellants, v. UNITED SERVICE AUTOMOBILE ASSOCIATION and Jerome C. Cohan and Lyndia Cohan Boyd, etc., et al., Appellees.
    No. UU-32.
    District Court of Appeal of Florida, First District.
    June 17, 1981.

      James C. Rinaman, Jr., of Marks, Gray, Conroy & Gibbs, Noah H. Jenerette, Jr., of Boyd, Jenerette, Lemis & Staas, Jacksonville, for appellants.
    John I. Todd, Jr., Lane Thomas Burnett, John F. Fannin, Christopher W. Gardner, Richard W. Kreidler, and William R. Swain, Jacksonville, for appellees.
   PER CURIAM.

The appellants, National Merchandise Co., Inc. (Pic-N-Save Drug Stores) and Maryland Casualty Co., seek reversal of a summary judgment granted to appellee, United Services Automobile Association (U.S.A.A.). We are asked to review U.S.A. A.’s plain language, simplified insurance policy, providing coverage for bodily injury incurred due to an “auto accident.” The alleged “auto accident” involves a four-year old child who ingested drugs while seated in the insured’s car and later expired. The trial judge granted summary judgment based upon his determination that the death of the child did not result from an auto accident and was, therefore, not within the coverage of the policy. Our review of the record and the applicable law leads us to a contrary conclusion. We therefore reverse.

A brief review of the facts as disclosed by the pleadings, exhibits and depositions is essential to the disposition of this appeal. During 1978, Paul Cohen worked for Pic-N-Save as a pharmaceutical supervisor in Jacksonville. One of his duties was to transfer drugs from one retail outlet to another. For this purpose, he used his station wagon, but Pic-N-Save reimbursed him for car insurance, gas, and repairs. Cohen indicated in a deposition that it was not unusual for him to leave drugs in his car overnight or over a weekend, although this procedure was apparently unknown to Cohen’s supervisor. Cohen spent a lot of time on the road, since he supervised and delivered drugs to eight different stores in North Florida and South Georgia.

On Wednesday, June 14, 1978, Cohen picked up some drugs from one of the Jacksonville stores. The drugs remained in his car Wednesday, Thursday and Friday. During working hours on Friday, June 16, he decided to stop by his home to estimate how much cement he would need to put up a wall in his back yard. At home he found his nephew, David, age four, and his niece, age two. Since they wanted to go for a ride with him, he took them to the hardware store. He was in the store for about ten minutes, while the two children waited in the car. Some drugs remained in a bag on the front floorboard on the passenger side of the car. When he returned, he found the drugs had been moved. Fearing that the children had done something with the drugs, he questioned them as to whether or not they had touched the drugs. They apparently assured him that they had not touched the drugs.

Cohen then drove home, dropped off the children and the cement, and returned to his job duties. He returned home at 5:30 p. m. and found his nephew lying on the couch, having convulsions. He realized that young David had apparently taken some of the drugs while in the car earlier. A rescue squad was called. David was taken to the hospital, where he died.

A wrongful death claim was subsequently filed by David’s parents alleging that David died as a result of taking a prescription drug while a passenger in defendant Paul Cohen’s car. David’s parents sued Paul Cohen,. Pic-N-Save, and Pic-N-Save’s insurance carrier (Maryland Casualty Co.). Pic-N-Save filed a number of third-party claims. One of the claims was against U.S. A.A., the appellee, as the insurer of Paul Cohen’s car. U.S.A.A. moved for summary judgment, stating that because of the wording of its policy it could not be held liable. The trial judge granted U.S.A.A.’s motion.

U.S.A.A.’s potential liability is based upon the interpretation of a clause in the appellee’s policy known as “The Easy Reading Auto Policy.” The policy is ten pages long with nine pages of special endorsements and provisions relevant to Florida coverage. The ten-page standard policy is in large, neatly-spaced type. Various sections are clearly set off from each other, and each section is titled in distinct, bold block letters. Each subsection has titles with slightly smaller bold black lettering. Various key words and phrases are in small bold type and defined elsewhere in the policy.

“Part A — Liability Coverage” on page one states: “We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an a uto accident” (emphasis supplied). Unfortunately, the term “auto accident” is not defined in the policy nor by law. The appellees claimed that young David’s death was not due to an “auto accident.” Their contention, with which the trial judge agreed, is that although the accident occurred in the auto, the auto was merely the situs and not causally related to the accident. Before discussing that issue, we offer the following comments on the “Easy Reading Auto Policy” and its relationship to this case.

Over one hundred years ago, Chief Justice Doe of the New Hampshire Supreme Court in DeLancey v. Insurance Co., 52 N.H. 581 (1873), complained about complex wording and fine print in insurance policies. He wrote (Id. at 587-588):

. . . they would not be understood by men in general, even if [the policies were] subjected to a careful and laborious study: by men in general, they were sure not to be studied at all. The study of them was rendered particularly unattractive, by a profuse intermixture of discourses on subjects in which the premium payer would have no interest. The compound, if read by him, would, unless he were an extraordinary man, be an inexplicable riddle, a mere flood of darkness and confusion. Some of the most material stipulations were concealed in a mass of rubbish on the back side of the policy and the following page * * * where scarcely any one would think of looking for information so important.
* * * As if it were feared that notwithstanding these discouraging circumstances, some extremely eccentric person might attempt to examine and understand the meaning of the involved and intricate net in which he was to be entangled, it was printed in such small type, and in lines so long and crowded, that the perusal of it was made physically difficult, painful, and injurious.

Chief Justice Doe stated that he felt such a policy was little more than a fraud. Id. at 588. More recently, the New Hampshire Supreme Court stated:

Although insurers had over one hundred years to hone their policies into forms that would not ferry the unwary reader on a trip through Wonderland, they regrettably have not seen fit to do so. Insurance policies today often fully merit the criticism that Chief Justice Doe le-velled at their predecessors.

Storms v. U. S. Fidelity and Guaranty Co., 118 N.H. 427, 388 A.2d 578, 579-580 (1978). Florida and other jurisdictions have also made it clear that an insurer has a duty to make its policy provisions and words plain, clear, and prominent to the layman, in a form which he can understand, especially in regard to coverage provisions. Hartnett v. Southern Insurance Company, 181 So.2d 524 (Fla.1965); Read v. Western Farm Bureau, Mutual Insurance Co., 90 N.M. 369, 563 P.2d 1162, 1167 (Ct.App.1977); Allstate Insurance Co. v. Reeves, 66 Cal.App.3d 464, 136 Cal.Rptr. 159, 162 (1977).

We note with approval that U.S.A.A. has apparently taken the words of the New Hampshire jurists to heart and made a creditable effort to provide the public with a policy that can be read, with perhaps a better degree of understanding, by the average policyholder. However, brevity and clarity are not necessarily synonymous, as we have learned in attempting to arrive at a decision in this case.

U.S.A.A. argues that a commonsense reading of its “plain language” policy, which provides coverage for “auto accidents,” does not cover situations such as occurred in this case. On the other hand, the appellants advocate the view that the term “auto accident” in the simplified insurance policy is ambiguous. When the terms used are ambiguous, we are required to construe the policy against U.S.A.A., because it drafted the policy. Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979); Travelers Insurance Co. v. Smith, 328 So.2d 870, 872 (Fla. 3rd DCA 1976). Insurance policies are contracts, and it is well-established that contracts are construed against the drafter in the face of any ambiguities. Planck v. Traders Diversified, Inc., 387 So.2d 440, 441 (Fla. 4th DCA 1980); Hurt v. Leatherby Insurance Co., 380 So.2d 432, 434 (Fla.1980). “This rule is especially true when the drafter stands in a position of trust, or greater professional or business knowledge. . . . ” Planck, supra, at 442. If the insurer wishes to condition its contractual liability upon the insured’s conformance with certain conduct, it must do so in clear, unambiguous language. Holz Rubber Co. Inc. v. American Star Insurance Co., 14 Cal.3d 45, 120 Cal.Rptr. 415, 423, 533 P.2d 1055, 1063 (1975).

Although the words “auto” and “accident” have definite or generally accepted meanings, these two words simply do not convey a meaning so clear and precise, for liability insurance coverage purposes, that one can determine whether a given accident, under many easily imagined circumstances, would or would not be covered. In this sense, the terms are “ambiguous,” hence the need for construction or interpretation. Roberson v. United Services Automobile Association, 330 So.2d 745 (Fla. 1st DCA 1975); Southside Motor Co. v. Transamerica Ins. Co., 380 So.2d 470 (Fla. 1st DCA 1980); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392 (Fla. 1st DCA 1979).

The insurer cannot, by failing to define the terms “auto accident” or to include any additional qualifying or exclusionary language, insist upon a narrow, restrictive interpretation of the coverage provided. See Roberson and Southside Motor Company, supra. Furthermore, while we acknowledge the duty to give effect to the “plain language” of the policy, automobile insurance litigation is infused with considerations of public policy, and our determination of the rights and obligations of the parties must also take into consideration relevant legislative enactments, established custom and usage in the insurance industry, and the body of case law touching upon coverage questions similar to the one before us.

There is a virtual parade of Florida auto insurance cases dealing with clauses insuring against injury “arising out of the ownership, maintenance or use” of an automobile. See, e. g., Denbaum v. Allstate Ins. Co., 374 So.2d 44 (Fla. 3rd DCA 1979); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied 368 So.2d 1368 (Fla. 1979); Hertz Corp. v. Pugh, 354 So.2d 966 (Fla. 1st DCA 1978); National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3rd DCA 1971). It is apparent to us that the words “arising out of the ownership, maintenance or use” of an automobile do not appear in insurance policies by mere happenstance. This is common and customary boiler plate language used in auto insurance contracts to define the scope and extent of coverage provided. The significance of this language is also evident in Florida’s statutes dealing with insurance. For example, a “motor vehicle liability policy” has been defined as an owner’s or operator’s liability policy insurance “against loss from liability for bodily injury, death and property damage arising out of the ownership, maintenance or use of a motor vehicle ...” Section 324.021(8), Florida Statutes (1979).

In Section 627.727(1), Florida Statutes (1979), the Legislature has directed that uninsured vehicle coverage be provided in auto insurance policies delivered in this state. This coverage must be supplied in any “automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle ...” Id. Likewise, personal injury protection “arising our of the ownership, maintenance, or use of a motor vehicle” is required in auto policies. Section 627.736(1), Florida Statutes (1979). See also Sections 627.-737(1) and 627.7372, Florida Statutes. This terminology is not only standardized in the industry, but we perceive it as expressive of the public policy of the state insofar as auto accident insurance protection is concerned.

Thus, confronted with a term that is standardized in the industry, we must recognize the principle that “usage of trade which is so well settled and generally known that all persons engaged in such trade may be considered as contracting with reference to it, has been regarded as forming a part of a contract of insurance entered into to protect risks in such trade.” 13 Appleman, Insurance Law and Practice, § 7388 at 189 (1976). Commercial transactions and contracts should be interpreted in light of custom or trade usage. Carr v. Stockton, 84 Fla. 69, 92 So. 814, 815 (1922); Fred S. Conrad Construction Co. v. Exchange Bank, 178 So.2d 217, 221 (Fla. 1st DCA 1965). Since we are also confronted, as we have indicated, with the statutory policy pronouncements that auto insurance coverage is extended to accidents “arising out of the ownership, maintenance or use of a motor vehicle,” we must be guided further by the principle that the law of this state is a basic ingredient of every contract. Board of Public Instruction v. Bay Harbor Islands, 81 So.2d 637 (Fla.1955). The law in existence at the time of the making of a contract forms a part of that contract, as if it were expressly referred to in its terms. General Development Corp. v. Catlin, 139 So.2d 901, 903 (Fla. 3rd DCA 1962).

We conclude, based upon the foregoing analysis, that the term “auto accident,” as used in U.S.A.A.’s policy, must be construed to mean that insurance will be provided for accidents “arising out of the ownership, maintenance or use of a motor vehicle.” Thus, it only remains for us to consider the facts of this case in relation to this terminology. “Most courts have not troubled to state whether their results are determined under the term ‘use,’ or whether it is under ‘maintenance’ or ‘operation’ [or ‘ownership’]. Generally, it is a combination of the three terms which induces the final result.” 6B Appleman, Insurance Law and Practice, § 4311 at 316 (1979). We think this case most aptly falls under the “use” provision of the clause, although we do not think that a ruling induced by a combination of all three terms is precluded. In analyzing whether or not the facts of this case fall within the “use” coverage of the policy, a three-pronged test has been suggested:

1. The accident must have arisen out of the inherent nature of the automobile, as such;
2. The accident must have arisen within the natural territorial limits of an automobile, and the actual use, .. . must not have terminated;
3. The automobile must not merely contribute to cause the condition which produces the injury, but must, itself, produce the injury.

Id. at § 4317 at 367-369.

The first prong requires that the “use” arise out of the “inherent nature” of the car. That an automobile is used to transport and even store items, either personal or commercial in nature, seems to us inherent. Paul Cohen testified at a deposition that it was his common practice to leave or store drugs in his car for a few days at a time. In this case, the car was used in a commercial sense to transport drugs from one location to another. In fact, when one looks at Cohen’s job duties of transporting drugs and his extensive use of his car in his job, his car is really his “office on wheels.”

The second prong of the test requires that the accident occur within the territory of the auto and that the “use” not have terminated. Again, it is apparent that the drugs were at the least still being stored in Cohen’s “office.” The delivery had not been completed, merely suspended.

The third prong presents a more difficult problem. In Watson v. Watson, 326 So.2d 48, 49 (Fla. 2nd DCA 1976), Judge Grimes noted that this prong defines “arising out of [the use]” to mean “originating from,” “growing out of,” or “flowing from.” A showing of proximate cause between the use of the car and the auto accident is not required. What is required is that a “causal connection or relation” between the two is shown. Id. at 49. A causal connection between the use of the automobile and the injury was not shown in Florida Farm Bureau v. Shaffer, supra (footnote 2), merely by the fact that the plaintiff was injured by shots fired from an automobile, where the policy provided coverage for bodily injury sustained as a result of the “ ‘use of any auto,’ ” (Id. at 217). On the other hand, in Valdes v. Smalley, supra (footnote 2), the court found that the accident in which the plaintiff was struck by a beer mug thrown from an automobile traveling forty miles per hour was “causally connected to the use of the automobile,” rather than a remote or mere “ ‘intervening event’ bearing no substantial or direct relation to the use of the vehicle.” Id. at 345.

Since we are here concerned with a provision of the policy relating to coverage, rather than exclusions from coverage, the terms used must be liberally construed in favor of the injured party. Valdes v. Smalley, supra. In view of the broad and comprehensive sense in which the term “auto accident” may be construed, we consider that only a minimal causal connection between the use of the automobile and the injury is required for coverage to apply. See National American Insurance Co. v. Insurance Co. of North America, 74 Cal.App.3d 565, 140 Cal.Rptr. 828 (1977).

We think the facts of this case are sufficient to establish a “minimal causal connection” so as to withstand a motion for summary judgment. The case closest on point is National Indemnity Co. v. Corbo, supra. In Corbo, the insured’s son invited the plaintiff to ride with him. The insured’s son was in the process of taking a watchdog from his home to a store for the evening. On the way, the insured stopped at a drug store. The plaintiff stayed in the car, and the dog bit him. Plaintiff sued, and the court ruled that the plaintiff could recover based on the policy language. The language insured against bodily injury for any accident “arising out of the ownership, maintenance or use of the automobile.”

According to our reading of the case, the Corbo court considered that the primary use of the car was to transport the dog. When the insured stopped at a drug store, the “use” has not been terminated, merely suspended. In this case, the insured was using his car primarily in an ongoing sense as his “office on wheels.” His employer paid all his auto insurance and other costs, which seems to further confirm this. The car was used to store drugs, and this use had not been terminated. Likewise, even though the insured was not on his way to make a delivery of drugs at the time of the accident, the insured had picked up the drugs for transport purposes. The car’s use for this purpose had not been terminated.

We therefore conclude that the trial court erred in determining as a matter of law, under the facts as we have reviewed them, that no coverage was provided under U.S.A. A.’s policy. The judgment is reversed and this cause is remanded for further proceedings.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

      . We note the trend toward “easy reading” or “plain language” documents. The New York Legislature has enacted N.Y. Insurance Law § 168 (Consol.1974) which permits “simplified policies of insurance” to be authorized by state government. More recently a law requiring that any contract to which a consumer is a party involving $50,000 or under must be: “1. Written in a clear and coherent manner using words with common and everyday meanings; [and] 2. Appropriately divided and captioned by its various sections.” N.Y.Gen. Obligation Law § 5-702 (Consol. 1978). Even President Carter gave substantial consideration to compelling all Federal agencies to write official rules and regulations in “plain English.” Proposed Executive Order, 42 Fed.Register 59740 (November 18, 1977); see also Givens, Richard A., The “Plain English" Law, 50 N.Y. Bar Journal 479 (1978) for coverage of the public interest generated by this concept.

      . See, also, Florida Farm Bureau v. Shaffer, 391 So.2d 216 (Fla. 4th DCA 1980); Feltner v. Hartford Accident and Indemnity Co., 336 So.2d 142 (Fla. 2nd DCA 1976); Valdes v. Smalley, 303 So.2d 342 (Fla. 3rd DCA 1974), cert. discharged
        National Ben Franklin Ins. Co. v. Valdes, 341 So.2d 975 (Fla.1976); General Accident, Fire and Life Assurance Corp. v. Appleton, 355 So.2d 1261 (Fla. 4th DCA 1978); Watson v. Watson, 326 So.2d 48 (Fla. 2nd DCA 1976); and Automobile Liability Insurance: What are Accident or Injuries "Arising Out of Ownership, Maintenance, or Use” of Insured Vehicle, 89 A.L.R.2d 150.

      . While it is true that this definition is part of the Financial Responsibility requirements which are not involved in this case, nor does the insured Paul Cohen fall under these requirements at this time, so far as we know, we simply point out the wording that our Legislature has chosen to use in this insurance statute. Furthermore, Section 324.151(l)(a), Florida Statutes (1971), which is also part of the Financial Responsibility scheme, requires the description of all vehicles in an owner’s liability policy so that they may be insured “against damage arising out of the ownership, maintenance, or use of such motor vehicle .... ”

      . This court utilized the first prong of the test in Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied 368 So.2d 1368 (Fla. 1979). In that case, a car was used as a stand to steady a rifle for the purpose of shooting a deer. The hunter missed and killed another person. Suit was filed against the auto insurer, claiming that the accident arose out of the use of the car. Liability was denied based in part upon the court’s determination that the use “was not such as arises out of the inherent nature of the motor vehicle.”

      . The Fourth District in General Accident Fire and Life Assurance Corporation, supra (footnote 2), has suggested that causal connection “may be established by showing that the automobile itself was used to inflict the bodily injury, as in Leatherby, or that the automobile was used in some manner that contributed or added to the bodily injury, as in Valdes.” Id. at 1263. See Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla. 2nd DCA 1975), and Valdes v. Smalley, supra (footnote 2).


author: WENTWORTH, Judge.

text:
    Linda HUGHES a/k/a Leila Wilson, Appellant, v. STATE of Florida, Appellee.
    No. SS-109.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Rehearing Denied July 24, 1981.
    Michael J. Minerva, Public Defender, Nancy Daniels, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., A. S. Johnston and Miguel A. Olivella, Jr., Asst. Attys. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Hughes appeals her conviction for the battery of a law enforcement officer in violation of § 784.07, Florida Statutes (1977). That statute provides more severe punishment for persons who bátter law enforcement officers than § 784.03, Florida Statutes (1977), provides for those persons who commit the same act against any other person. Hughes asserts that because the officer who arrested her was privately employed at the time of her arrest, he was not engaged in the performance of his official duties, and, therefore, there exists no rational basis for punishing her under the more stringent statute. We affirm.

On May 25, 1979, Officer Zipperer, a Du-val County Deputy Sheriff, was privately employed as a security guard at the J. C. Penney Department Store in Jacksonville. While on duty as a security guard, Zipperer noticed two females, one of whom was the appellant, acting suspiciously at a clothing rack. Zipperer went to the stockroom which was equipped with a two-way mirror. While observing the two women through the mirror, Zipperer saw Hughes place several items of clothing in her purse. He then approached Hughes, told her he was a police officer, showed her his badge and told her he was arresting her. Hughes bumped the officer and ran to the door. When Officer Zipperer attempted to subdue Hughes, she struck him and tore his shirt.

The State subsequently charged Hughes with petit theft and with battery on a law enforcement officer. She was convicted of the battery, but the trial court declared a mistrial on the petit theft count.

Section 784.07, Florida Statutes (1977), makes the battery of a law enforcement officer a third degree felony:

(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer or a firefighter while the officer or firefighter is engaged in the lawful performance of his duties, the offense for which the person is charged shall be classified as follows:
* * # * * *
(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

In Soverino v. State, 356 So.2d 269 (Fla. 1978), the appellant challenged the constitutionality of § 784.07. The Supreme Court determined the statute passed constitutional muster and stated:

Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.

Id. at 272.

The Court in Soverino did not, however, address the issue of whether a law enforcement officer is in the performance of his official duties while employed as a security guard. That issue was resolved by our sister court in State v. Robinson, 379 So.2d 712 (Fla. 5th DCA 1980). In Robinson, the trial court dismissed an information alleging Robinson resisted an officer with violence to his person in violation of § 843.01, Florida Statutes (1977). The underlying incident occurred while an off-duty police officer was employed as a security guard at a jai alai fronton. The appellant struck the uniformed officer when he came to the assistance of two other off-duty officers who were struggling to maintain custody over a man they had arrested. The court stated:

We hold that Officer Stenzel’s ‘off-duty’ status was not a limitation upon his right to exercise police authority in the presence of criminal activity. He was engaged in the lawful performance of his duty as a police officer of the City of Melbourne when he came to the assist-anee of Sgt. Young and Sgt. Malone, who were struggling to maintain custody of the man they had arrested and were in the process of removing from the fronton premises [footnote omitted].

Id. at 715.

In this case, Officer Zipperer testified he observed the appellant placing clothing in her purse. He then identified himself before arresting Hughes. Whether or not the officer was performing official duties prior to that time, his subsequent self-identification and arrest of Hughes constituted a dutiful exercise of police authority in the presence of criminal activity.

The court has requested and received memoranda as to potential applicability of the lesser penalty of § 812.015(6), Florida Statutes (Supp.1978), governing battery of privately employed security guards as a general class. We conclude that reversal on that authority is not warranted. In light of the legislative intent as interpreted in Sov-erino, we hold there is a rational basis for punishing Hughes’ action under the more stringent provisions of § 784.07.

The conviction is affirmed.

MILLS, C. J., and McCORD, J., concur.

      . The fact that the trial court declared a mistrial on the petit theft count has no bearing on the appropriateness of the exercise of police authority. Brown v. State, 91 So.2d 175 (Fla. 1956); Trivette v. State, 244 So.2d 173 (Fla. 4th DCA 1971).


text:
    SIMS CRANE SERVICE and Old Republic Insurance Company, Appellants, v. Ralph A. (Guy) KING, Appellee.
    No. WW-65.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Rehearing Denied July 24, 1981.
    Clifford L. Somers, of Miller, McKendree & Somers, Tampa, for appellants.
    Joseph L. Thury, Tampa, for appellee.
   PER CURIAM.

The employer/carrier seek reversal of a worker’s compensation order awarding the claimant temporary total disability, finding that he had not reached maximum medical improvement as of the date of the hearing, and ordering further medical treatment. The E/C rely upon the testimony of Dr. DeWeese that as of August 22, 1979, the claimant was suitable for release without further treatment. However, the Deputy Commissioner accepted and relied upon the testimony of Dr. Maniscalco, a highly respected neurosurgeon, who last saw the claimant on October 17, 1979 as “more persuasive and more consistent with the facts in the case,” than the testimony of Dr. DeWeese. In accordance with the testimony of Dr. Maniscalco, the Deputy Commissioner found that claimant suffered an aggravation of a preexisting condition of his neck, shoulder and arm which stemmed from earlier industrial accidents. We conclude that the testimony of Dr. Maniscalco, coupled with the testimony of the claimant himself as to his physical condition, was sufficient to justify the award of temporary total disability, notwithstanding Dr. Manis-calco’s testimony by deposition on March 14, 1980, a few days prior to the hearing, that he could not tell if the claimant was disabled on that date without seeing him. The claimant testified that he tried but was unable to do small jobs around the house because of pain. He started the job of screening in a carport, and had been working on it for six months, but was still not finished. Further, although Dr. Maniscalco scheduled him for a myelogram, this was not done because of E/C would not pay for it. The claimant further testified that Dr. Maniscalco told him not to go back to work until he was in better physical condition. We distinguish this case from Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981), and Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981), since in those cases there was no medical evidence that the claimant was unable to work, nor was there evidence, as here, of the claimant’s unsatisfactory attempts to perform small jobs at home in the interim after being found temporarily totally disabled by his physician and instructed not to return to work until his physical condition improved.

However, we agree with the E/C’s contention that it was error to award temporary total disability until the claimant reached maximum medical improvement. Accordingly, we amend the order to provide that temporary total disability benefits should continue until the claimant achieves MMI or is able to return to work. A claimant need not have reached MMI to cease being eligible for temporary total disability benefits. Fowler Harvesting v. Thompson, 394 So.2d 1086 (Fla. 1st DCA 1981).

McCORD, LARRY G. SMITH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: BARKDULL, Judge.

text:
    C. A. DAVIS, INC., and Insurance Company of North America, Appellants, v. CITY OF MIAMI, etc., et al., Appellees.
    No. 80-693.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Rehearing Denied July 24, 1981.

      Horton, Perse & Ginsberg and Edward A. Perse; Welbaum, Zook, Jones & Williams and W. Frank Greenleaf, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   BARKDULL, Judge.

Plaintiff and counter-defendant, C. A. Davis, Inc., and counter-defendant, Insurance Company of North America [INA], appeal from a final judgment entered in favor of the defendant/counterclaimant, City of Miami [City]. A cross appeal has also been filed by the City.

This appeal concerns a contract between the City and Davis, under which Davis was to landscape and to place new tiles on the sidewalk along Flagler Street in downtown Miami. Under the contract, the City provided Davis with the “best available records” showing the “.. . locations or grades of underground structures, utilities, foundations ...” in the area. However, Davis was to “. . . bear all losses resulting to him on account of ... existing underground installations being different from what he anticipated . . . ’’, One hundred-eighty days was specified under the contract for completion of the project, and time was said to be of the essence.

Davis contends that, from the beginning, it was impeded and delayed in its work, due mainly to utility installations and building foundation problems which were improperly detailed or omitted on the plans supplied to it by the City. Furthermore, Davis contends that the City hid behind the contract provision (which placed the burden for such problems on Davis), even though the City had knowledge of the problems. Finally, Davis argues that the tiles selected by the City would not stay down properly, although they were laid according to contract specifications. In the face of these problems and with only a portion of the contract completed, Davis walked off the job. Davis had been paid at various stages for those portions it had completed prior to walking off the job.

Thereafter, by use of new (different) tiles, another contractor completed the project. Davis sued the City for breach of contract in failing to provide adequate plans and specifications and in failing to cooperate, thereby hindering Davis’ performance. Davis sought the balance due on the contract, damages for delay, and compensation for work performed beyond that required by the contract. The City filed a general denial, counterclaiming against Davis and its surety, INA, for breach of contract; specifically the cost of completion. The City defended and failed a counterclaim seeking damages for delay, in accordance with the provisions of the contract.

A jury verdict was entered adverse to the plaintiff and for the defendant and counter-plaintiff, City, against Davis but was silent as to the surety. Subsequently, a final judgment was rendered on the verdict in favor of the counter-plaintiff and against the counter-defendants, Davis and its surety. This appeal ensued.

The appellant, Davis, contends: (1) That it was error to rule that the contract precluded Davis from introducing evidence concerning delays and costs resulting from underground obstruction encountered during the project; it was also error to deny Davis’ requested instruction on this issue. (2) That it was error to hold that Davis, alone, had a duty to secure utility company cooperation with regard to underground obstructions encountered on the project, and it was error to refuse Davis’ requested jury instruction concerning the City’s duty to cooperate in Davis’ performance of the contract. (3) That it was error not to allow evidence that the City did not properly mitigate its cost of completion and other damages.

The appellant, INA, contends that it was error to enter a judgment against it, where that party was neither mentioned in the jury instructions nor on the jury verdict form.

We affirm as to the main appeal and reverse as to the cross appeal for the reasons hereinafter stated.

It was proper to hold that Davis could not claim damages for delay due to inaccuracies in the plans, where such damages and delays were not properly presented and proved. The law in Florida is that so long as a public authority does not willfully or knowingly delay job progress it will avoid liability under a “no damage for delay” clause. See: McIntire v. Green-Tree Communities, Inc., 318 So.2d 197 (Fla.2d DCA 1975). Davis was unable to present evidence showing any specific delay caused by the City; the court correctly refused to instruct the jury on Davis’ claims for delayed damages. See: Luster v. Moore, 78 So.2d 87 (Fla.1955), for the proposition that a jury instruction on a particular theory of the case will not be given where there is no competent evidence to support it. Furthermore, the cases cited by Davis are inapplicable because in none of them did the court discuss the validity or effect of a “no damages for delay” clause. In the present case, unlike the cases cited by Davis, there was no implied warranty with regard to the plans nor was there any misrepresentation in the plans. The court correctly refused to instruct the jury on the City’s duty to cooperate where there had been no evidence that the City had failed to cooperate. The evidence before the court demonstrated that the City repeatedly and routinely cooperated in an effort to keep the project going. In fact, the City had no implied duty to do Davis’ work, but only a duty not to hinder or impede that work. See: Casale v. Carrigan and Boland, Inc., 288 So.2d 299 (Fla. 4th DCA 1974). The court correctly refused to allow Davis to present evidence concerning the quality of the tile or concerning the tile installation by the successor contractor. Davis, as the defaulting contractor, may not claim that the City spent too much to complete the project absent evidence of waste, extravagance or lack of good faith. See: R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87 (Fla.3d DCA 1969).

The court correctly ruled that INA wás liable, as a matter of law, to pay the City for the damage it suffered as a result of Davis’ work and it correctly entered a judgment against INA. INA neither requested a jury instruction regarding its liability nor objected to the special verdict form (omitting its name) which was presented to the jury. Therefore, INA may not now be heard to complain that the verdict was improper or that judgment should not have been entered against it. See: Tidwell v. Toca, 362 So.2d 85 (Fla.3d DCA 1978).

As to the cross appeal, it was error to prevent the City from amending its counterclaim, specifically to state its claim for delay, some seven months prior to the trial and where such an amendment would have caused no prejudice or surprise to Davis. Later, at trial, when the evidence supporting the claim was admitted without objection, leave to amend should have been given freely. See: Fla.R.Civ.P. 1.190(a) and (e). When Davis failed to object to evidence presented on this subject, the issue was thereby tried by implied consent and the jury should have considered it. See: Free Bond, Inc. v. Comaza International, Inc., 281 So.2d 61 (Fla.3d DCA 1973).

The final judgment under review in the appeal taken by Davis and INA be and the same is hereby affirmed. So much of the final judgment as relates to the counterclaim by the City be and the same is hereby reversed, and the cause remanded for a new trial solely on the issue of the damages, if any, that the City suffered under the penalty provisions of the contract. In this context, a subsequent jury or finder of the fact may be informed of the amount the City has already recovered under the judgment herein.

Affirmed in part, reversed in part, with directions.

      . "GENERAL CONDITIONS-SEC. 5-1

      The locations or grades of underground structures, utilities, foundations, etc., as shown on the Plans, are taken from the best available records. The City shall not be held accountable for inaccuracies or omissions in the locations or grades of existing underground structures, utilities, foundations, etc. No claim is to be made by the Contractor for damage on account of the proximity to, leaking from or delay caused by underground structures, utilities, foundations, etc.

        GENERAL CONDITIONS-SEC. 6-9

      The Contractor shall take into account all contingent work which has to be done by other parties arising from any cause whatsoever and shall not plead his want of knowledge or said contingent work as an excuse for delay in his work, or for non-performance.

        GENERAL CONDITIONS

      7-2 RESPONSIBILITY OF THE CONTRACTOR.
      7-2.1 PROSECUTION OF THE WORK. The Contractor shall be responsible for the good condition of the Work until his release from his obligations. He shall bear all losses resulting to him on account of the amount or character of the Work, the character of the ground or existing underground installation being different from what he anticipated, or on account of the weather or the elements.

        SPECIAL PROVISIONS

      2.24 COVER OVER EXISTING UNDERGROUND STRUCTURES.
      All underground information shown on the Plans is as complete and accurate as can be shown from the existing records. Certain structures may not be located precisely as shown, or may be omitted entirely.
      Caution shall be exercised by the Contractor in grading operations, as some existing underground utilities have a minimum cover. The Contractor shall be responsible for replacing any underground facility broken or dislocated during construction for which sufficient underground information has been shown on the plans.

        CONSTRUCTION METHODS

      400 LOCATION OF UTILITIES AND CONTROLS EXERCISED.
      400-1 Utility Control and Protection: The Contractor shall notify each utility company at least two weeks prior to the start of construction to arrange with each utility for positive underground locations, relocation if required, or support and protection of its utility, where that utility may be in conflict with the proposed construction. Moving any water mains or valves for the convenience of the Contractor shall be negotiated and paid for by the Contractor.
      The Contractor shall schedule his work in such a manner that he will not be delayed by the utility companies’ relocating, protecting or supporting their facilities. No compensation shall be made for such loss of time.
      All underground information shown on the Plans is as complete and accurate as can be determined from existing records. However, because of conflicting and sometimes erroneous information, certain structures may not be located precisely as shown, or may be omitted entirely from the Plans.”

      . Based on the cost incident to laying the originally selected tiles, not the cost of laying the subsequently selected tiles which were laid by the successor contractor.

      . Penalty of $100.00 per day for delay.

      . At the time of the charge conference, the City requested an instruction that if the jury returned a verdict in favor of the counter-plaintiff it should render a verdict against both the contractor (Davis) and its surety (INA). A colloquy occurred and the trial court indicated that such an instruction was not necessary; that if there was a verdict against Davis because of the terms of the surety undertaking, it would also be against INA. All parties acquiesced in this statement by the court.


text:
    Michael KIRK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-19.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

      Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

The order revoking the appellant’s probation is affirmed upon a holding that (a) the evidence adduced below at the probation revocation hearing was sufficient to satisfy the conscience of the court that the appellant had violated his probation by committing an attempted burglary, see e. g., Brill v. State, 159 Fla. 682, 82 So.2d 607 (1947); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA), cert. denied, 300 So.2d 901 (Fla.1974); and (b) the record presented upon appeal does not reflect error in the trial court’s failure to sentence the appellant under the Youth Offender Act — although the affirmance here is without prejudice to the appellant to seek post-conviction relief in the trial court under Fla.R. Crim.P. 3.850 on this issue. See e. g., Cannon v. State, 384 So.2d 970 (Fla. 3d DCA 1980).


text:
    Max J. RASHKIN and Evelyn Rashkin, Appellants, v. David C. PEARCE, Appellee.
    No. 79-1503.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied July 24, 1981.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    F. Kendall Slinkman, West Palm Beach, for appellee.
   HURLEY, Judge.

Appellants, plaintiffs below, contest the entry of an adverse summary final judgment. We conclude that the doctrine of res judicata was erroneously applied and, consequently, we reverse.

Appellants Max and Evelyn Rashkin leased certain property to Appellee Pearce for a term of three years, beginning May 31, 1973, and ending May 31, 1976. Monthly lease payments were $1,200 plus royalties on milk produced by Pearce and a portion of utility expenses and property taxes. On October 19, 1973, the Rashkins filed suit against Pearce for the rents due since May 31, 1973, milk royalties and utility payments. Judgment was entered in favor of the Rashkins for $24,471. Subsequently, the court denied a motion for rehearing which sought clarification of the periods of time covered by the judgment.

In March, 1977, the Rashkins again filed suit against Pearce for past due rent, milk royalties, utility and tax payments. Pearce filed a motion to dismiss, asserting res judi-cata. The motion was granted, but we reversed in Rashkin v. Pearce, 360 So.2d 1161 (Fla. 4th DCA 1978). On remand, Pearce moved for summary judgment again asserting res judicata; and again, it was granted.

Appellee Pearce maintains that the prior 1973 judgment encompassed the entire lease period because in the first suit the Rashkins sought an adjudication of all monies due and owing from May 31, 1973, through the end of the lease period. However, the final judgment in the first action is silent as to the period for which recovery was allowed. Absent some definite indication to the contrary, we must presume that the trial judge did not grant recovery for the entire lease period, but rather, limited recovery to the period between the inception of the lease and the initiation of the lawsuit, i. e., May 31, 1973 — October 19, 1973.

It is presumed that courts know and act in conformity with the law. Ennis v. Giblin, 147 Fla. 113, 2 So.2d 382 (1941). Furthermore, it is well settled that in the absence of an acceleration clause in a lease, “future rent is demandable only in the amounts and at the times named in the lease [and] the total cannot be recovered at law in a lump sum in advance of the accrual of the installments.” Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346, 348 (1944). See also Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979); Aldridge v. Liberty Air, Inc., 210 So.2d 279 (Fla.3d DCA 1968). We presume that the trial court was aware of this principle and applied it in the 1973 action. This being so, appellants’ present suit is limited to rents and other items which have accrued since the date of the institution of the first suit. Williams v. Aeroland Oil Co., supra. Thus, the subject matter of the two suits is distinct and different and the final judgment in the first action is not res judicata as to the matters now before the court. Accordingly, the final summary judgment entered herein is reversed and the cause is remanded for further proceedings consistent with this opinion.

BERANEK and HERSEY, JJ., concur.