author: DOWNEY, Judge.

text:
    Benjamin W. BROWN, a/k/a Benjamin William Brown, Appellant, v. STATE of Florida, Appellee.
    No. 80-1146.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      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.
   DOWNEY, Judge.

Benjamin W. Brown appeals from a judgment adjudicating him guilty of three counts of uttering a false, forged, or altered check and concurrent sentences of five years probation on each count.

We have considered appellant’s three points on appeal and find no reversible error demonstrated under any of said points. However, we deem it appropriate to address appellant’s contention in Point Three that one of the conditions of his probation was unconstitutionally vague and unrelated to rehabilitation. Condition Number Nine required appellant to “Stay away from bars.”

The record reflects that appellant has a lengthy history of varied involvement in crime, including association with drug dealers. During prior probationary periods he was often unemployed and was considered to be generally lazy by his probation officer. Apparently, the trial judge felt hanging around bars with the associations often found there was not conducive to appellant’s rehabilitation and to the protection of the public from future criminal activity in which appellant might, as a result, become involved.

A condition of probation should reasonably relate to the offense involved, the rehabilitation of the defendant, or the protection of the public. Dearth v. State, 390 So.2d 108 (Fla.App.1980). We hold that the condition complained of, which was imposed by the veteran trial judge, fulfills the purposes of probation conditions as set forth in Dearth, supra. It is not unconstitutionally vague. The average person would understand the meaning of the admonition, “Stay away from bars.”

Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Richard J. FENICK, Computer Business Services, Inc., and Advisory Associates, Inc., Appellants, v. Jack M. ROBERTSON and I.H.I.M.M., Inc., Appellees.
    No. 80-1154.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Arthur C. Koski of Koski, Mateer & Gillespie, P. A., Boca Raton, for appellants.
    Alan Richard Simon of Reynolds & Reynolds, Chartered, Boca Raton, for appellees.
   DOWNEY, Judge.

In their multicount complaint appellees sued appellants seeking to recover a) upon a promissory note, b) in replevin, and c) damages.

In the final judgment entered after trial without a jury the court found that appel-lees were entitled to recover specified personal property mainly having to do with a computer and associated equipment furnished by appellees. The court also found that appellees were entitled to recover damages as well as the principal and interest on a promissory note.

Appellants pose four points on appeal, but only one warrants discussion. That point has to do with piercing the corporate veil and holding the individual appellant, Richard J. Fenick, liable for the corporate obligations of appellant, Advisory Associates, Inc. Appellants’ Point III at first blush appeared to have some merit, but upon closer inspection of the record we find it insufficient to support appellants’ argument directed at overturning the trial judge’s findings on the rental value of the equipment involved.

The point warranting discussion involves certain of the trial court’s findings. In its final judgment the court found, among other things, that Fenick “totally disregarded the corporate status of the Defendant ADVISORY ASSOCIATES, INC., and used that corporation for his own use and benefit with a total disregard of the corporate entity.” In addition, the court found that Fen-ick “abused his position as officer and director of that corporation to fraudulently mislead and deceive the Plaintiff to the detriment of the Plaintiff.” Based upon the foregoing findings of fact, the court ruled that appellant Fenick was individually liable to appellee Robertson for all damages Robertson incurred.

On appeal Fenick takes the position that there is no basis for the finding that Fenick was individually liable (a) on the $5,375 note he signed as president of Advisory Associates, or (b) for the rental value of the computer equipment. Fenick supports his position primarily by asserting that there was no showing that he was guilty of fraud. We do not decide whether there was evidence showing Fenick was guilty of fraud, since a corporate officer may be found individually liable without a showing of fraud. Levenstein v. Sapiro, 279 So.2d 858, 860-861 (Fla.1973). Individual liability may be imposed upon a showing that the relationship between the individual and the corporation was completely personalized, i.e., that the individual was the sole beneficiary of the corporation’s activities, directed and managed its activities, and used the corporate name at his pleasure. Ibid.

At trial Fenick took the position that the computer equipment was the property of Advisory Associates, and that “Advisory Associates, Inc., is me . . . . ” He further testified that he decided to turn over to a corporation of which his son was president the computer equipment in question (which equipment constituted the sole assets of Advisory Associates) at no charge, except that the son’s corporation would be responsible for the maintenance of the equipment. This alone would be grounds for holding Fenick individually liable. See Annot., Disregarding Corporate Entity, 46 A.L.R.3d 428, §§ 5, 6. There was no corporate resolution authorizing Fenick to turn over the equipment to his son’s corporation. What is more, Advisory Associates never held any corporate meetings. These facts lead to the clear inference that, although Advisory Associates was a legitimately organized corporation, Fenick operated it as a sole proprietorship. And it should not be overlooked that Fenick testified Advisory Associates was inactive at the time of trial, again leading to the clear inference that Fenick’s individual decision to grant his son’s corporation the use of the computer equipment in question led to the practical, if not actual, demise of Advisory Associates. The record in the present case shows the court properly considered equitable principles and properly found that Fenick was individually liable because Advisory Associates was his alter ego. Levenstein v. Sapiro, supra.

Accordingly, we find no reversible error demonstrated and affirm the judgment appealed from in all respects.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    David SCHLESSER and Ursula Schlesser, Appellants, v. Henry LEVINSON, Appellee.
    No. 80-2166.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      William S. Isenberg, Fort Lauderdale, for appellants.
    Joseph J. Glazer, Hallandale, for appellee.
   HERSEY, Judge.

After an altercation Appellant filed a complaint against Appellee resulting in Ap-pellee being charged with and eventually convicted of an assault. A new trial was granted and Appellee was subsequently acquitted.

Appellee then filed the present action for malicious prosecution against Appellants which resulted in a jury verdict assessing damages of $2500 against Appellants.

This appeal complains of two aspects of the proceedings in the lower tribunal which we consider in the sequence in which they have been briefed and argued.

The substance of appellants’ first suggestion of error arises from the trial court’s refusal to grant a new trial. The basis for a new trial is said to be that the jury considered improper evidence in reaching a verdict on damages. At one point in the trial appellee testified that this incident (referring to the criminal prosecution) had cost him $2500. An objection was sustained and the jury was directed to disregard this testimony. An instruction was given in due course on the appropriate elements of damage for malicious prosecution.

There was testimony upon which the jury could base a finding of monetary damages. The fact that the award coincides with an amount suggested by an inappropriate measure of damages is insufficient, standing alone, to justify setting aside the verdict at the appellate level.

Assessing the amount of damages for malicious prosecution is peculiarly within the province of the trier of fact. Maiborne v. Kuntz, 56 So.2d 720 (Fla.1952). Further, a motion for new trial is addressed to the sound judicial discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Stopko v. Farrington, 235 So.2d 28 (Fla. 4th DCA 1970). No such showing is made by this record.

The second point on appeal is directed to the refusal of the trial court to give a requested instruction. For a plaintiff to recover in an action for malicious criminal prosecution it must be shown that the preceding criminal prosecution terminated in his favor. There are certain consequences which follow from an initial conviction (an adverse termination) and subsequent reversal on appeal with an eventual “favorable” termination. See e. g., Padrevita v. City of Lake Worth, 367 So.2d 739 (Fla. 4th DCA 1979).

The pertinent provision of the tendered instruction provides that:

One acts without probable cause in instituting a criminal proceeding against another if the circumstances are not sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. You may infer from a finding of guilt in the criminal proceeding, even if later reversed, that there was probable cause in instituting the criminal proceedings.

We have carefully reviewed the instructions which were given to the jury and have concluded that the applicable law was fully and fairly presented based upon the pleadings and the evidence.

Even if we were not able to so conclude, however, we would not classify the court’s refusal to give the requested instruction as error. The second sentence of the proffered instruction, the portion in issue, is fragmentary and therefore misleading and erroneous. The pleadings allege and there was some evidence that the initial conviction was obtained by “perjury or other corrupt means.” See Padrevita v. City of Lake Worth, supra.

Accordingly, we affirm.

AFFIRMED.

LETTS, C. J., and HURLEY, J., concur.


author: PER CURIAM.

text:
    Jesse James MANN, Appellant, v. STATE of Florida, Appellee.
    No. 81-135.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant’s conviction is affirmed but the sentence imposed by the trial court is vacated and this cause is remanded for re-sentencing in accordance with the case of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    Brett PANTER, Appellant, v. WERBEL-ROTH SECURITIES, INC., Appellee.
    No. 81-380.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Louis Vernell, Miami Beach, for appellant.
    Robert A. Plafsky of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for appellee.
   BERANEK, Judge.

The appellant appeals from an order denying his motion to vacate final judgment. The appellee, Werbel-Roth Securities, Inc., filed suit against the appellant alleging insufficient funds to cover a check, breach of contract, and misrepresentation. Service was made on the appellant by substituted service at the home of his father in Hollywood. His father attempted to quash service on appellant’s behalf and filed a sworn motion attesting to the fact that his son lived in Michigan and had not designated his father to accept process in his behalf. The motion was denied. The appellant did not respond to the complaint and the trial court granted the appellee’s motion for default against the appellant:

At this point, the appellant made a motion to vacate the default and to quash service attaching an affidavit concerning his residency and usual place of abode. The affidavit stated that the appellant was a permanent resident of Michigan, having lived there for three years, and that he had a valid Michigan driver’s license and voter registration card. Furthermore, all requisite tax returns reflected his Michigan address. This motion to vacate the default was scheduled to be heard at the same time as the appellee’s motion for final judgment. Both were continued by agreement of the parties because of the trial schedule of appellant’s counsel. The appellee rescheduled its motion for final judgment but there is a dispute as to whether the appellant received notice of this hearing. The trial court granted the motion for final judgment but never heard the appellant’s motion to vacate. The appellant then made a motion to vacate final judgment which was denied. On appeal, the appellant contends that the trial court erred in entering and in failing to vacate the default and final judgment. We agree and reverse.

Section 48.031, Florida Statutes (1979), requires that service be at the appellant’s usual place of abode. Statutes governing substituted service of process must be strictly construed and strictly complied with. Wakeman v. Farish, 356 So.2d 1323 (Fla. 4th DCA 1978); Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977). The term “usual place of abode” means the place where the person is actually living at the time of service. Hauser v. Schiff, supra; State v. Heffernan, 142 Fla. 496, 195 So. 145 (1940). Both appellant’s father and appellant executed sworn statements to the effect that the appellant was living at his permanent address in Michigan when service was made in Hollywood. Appellant stated that he was a permanent resident of Michigan, having lived there for three years, that he had a Michigan driver’s license, that he voted there and filed taxes there. In contrast, the appellee offered no evidence contradicting these affidavits nor did it offer any proof that the appellant’s usual place of abode was Hollywood.

The appellant argues that the purpose of service of process is notice and that the father, who was in contact with his son, had advised the appellant of the pendency of the suit. However, the appellant’s actual knowledge of the attempted service cannot be used to justify the appellee’s failure to strictly observe and substantially comply with service requirements. Napoleon B. Broward Drain District v. Certain Lands, Etc., 160 Fla. 120, 33 So.2d 716 (1948). In light of the uncontradicted evidence presented, we hold that the trial court erred in failing to vacate the default and final judgment. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

LETTS, C. J., and DOWNEY, J., concur.


author: LETTS, Chief Judge.

text:
    Walter J. BROWN and Muriel A. Brown, his wife, and Florida Executive Realty, Inc., Appellants, v. Paul E. MATTON, Appellee.
    No. 81-467.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Bennett S. Cohn, Lake Worth, and Carl L. Campbell, Palm Beach, for appellants.
    William M. Layton, Lake Worth, for ap-pellee.
   LETTS, Chief Judge.

This appeal comes to us from a final judgment which returned the deposit on a real estate contract to the buyer because the contract was contingent upon the buyer securing a mortgage which he failed to obtain. We reverse.

The particular contingency provision read as follows:

This contract is contingent upon buyers securing an 85% mortgage at financial institution at current rate and terms within 30 days.

During the non-jury trial of this cause, considerable evidence was introduced by both sides about whether or not the buyer made a good faith effort to secure the financing. Normally the resolution of such a question would be one which we would leave to the trier of the facts. However, in this particular instance the judge’s final order unequivocally returned the deposit to the purchaser solely because:

The way the contract is written, the responsibility for providing such financing is upon the seller or the real estate agent within thirty (30)days if either are to declare a forfeiture. In this case the plaintiff went further in attempting to close the transaction than was required by the contract.

We believe that the trial judge was wrong in so interpreting the contingency provision. Not only are we of the opinion that the quoted contingency does not place the responsibility of securing the financing upon the seller or the real estate agent, to the contrary we feel that the language employed quite clearly places the burden of obtaining the financing upon the buyer.

Notwithstanding our disagreement with the trial judge’s reasoning we would nonetheless affirm if we were convinced that he had the right result although for the wrong reason. See Firestone v. Firestone, 263 So.2d 223 (Fla.1972). However, our perusal of the record on the question of whether the purchaser made a good-faith effort to secure the financing is not convincing one way or the other and the trial judge made no such finding.

As a consequence, this cause is reversed for a new trial on the issue of whether or not the buyer made a good-faith effort to secure financing from an institutional mortgage lender at current rates and terms within thirty (30) days.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.


text:
    Albert K. DEBUS, Petitioner, v. HENDRY CORRECTIONAL INSTITUTION and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Respondents.
    No. 81-677.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1981.
    Albert K. Debus, pro se.
    James R. Parks, Gen. Counsel, and Norman A. Blessing, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Upon review of the record and arguments therein, we conclude that the decision of the appeals referee, which was adopted by the Unemployment Appeals Commission, should be upheld.

The appeals referee is the fact-finder in the unemployment compensation claims procedure. In this case, there was competent substantial evidence upon which the referee could have made his finding that Debus voluntarily left his employment without good cause. Consequently, Debus is not entitled to receive unemployment compensation. Bagwell Lumber Co. v. Florida Department of Commerce, 353 So.2d 1261 (Fla.2d DCA 1978).

Therefore, the order appealed from is affirmed.

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


text:
    Frank J. BARANKO, Appellant, v. STATE of Florida, Appellee.
    No. UU-194.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Baranko appeals the judgment and sentences imposed after a jury found him guilty of threatening a public official and making a written threat to kill. He raises three points for our consideration.

First, appellant contends that there was an insufficient inquiry by the trial court as to appellant’s ability to adequately represent himself at trial. We disagree. Although the court’s formal inquiry concerning appellant’s ability to represent himself was minimal, we note that there was substantial evidence before the court indicating appellant had such ability. There were numerous pleadings in the case filed by appellant which reflected appellant’s familiarity with the legal process. At the hearing on the defendant’s request to represent himself and the public defender’s motion to withdraw, appellant was articulate and persuasive in arguing for his right of self representation. Appellant is an intelligent and educated man with two years of college. In light of these facts we cannot say that the court’s inquiry, which dealt primarily with the voluntariness of appellant’s decision, was insufficient.

Appellant next argues that the trial court erred in ruling that the state need not comply with appellant’s demands for discovery until appellant produced a handwriting exemplar. Although this may be considered an unusual sanction for an accused’s failure to comply with an order under Rule 3.220(b)(l)(vii) to provide a specimen of his handwriting, we do not find that it was inappropriate under the circumstances, nor disproportionate to the conduct that caused the sanction to be invoked in the first instance. Because of the appellant’s refusal to comply with the discovery order of the court, it became necessary for the state to produce an additional witness, an inmate counselor, not previously disclosed to appellant. The state was also required to introduce ten non-disclosed documents previously notarized by the inmate counselor and identified by him as having been written by appellant, in order to provide documents for comparison by the state’s handwriting expert. Appellant points to no other undisclosed witness or evidence presented by the state.

We agree with appellant’s contention that contempt is a proper remedy for enforcement of discovery. Cf. Brooks v. State, 350 So.2d 517 (Fla. 4th DCA 1977). It may even be the preferred remedy, since its use would not entail any possible Sixth Amendment violations. Cf. Brown v. Wainwright, 459 F.Supp. 244 (M.D.Fla.1978). However, contempt is not the only remedy available to enforce discovery, and there may be circumstances (such as where the accused is already incarcerated on another charge, as here) under which contempt would be ineffective to secure compliance. Rule 3.220(j)(l), Florida Rules of Criminal Procedure, provides specific methods for enforcement, i.e. the court may order compliance, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing into evidence the material not disclosed, or, “enter such other order as it deems just under the circumstances.” This rule is more specific than its predecessor, and vests broader discretion in the trial judge than ABA Standard 4.7, from which it was patterned. See Author’s Comment, Rule 3.220, Florida Rules of Criminal Procedure, 33 Florida Statutes Annotated 412 (1975).

We find without merit appellant’s contention that the state “did not need” the handwriting exemplars requested, since it found a ready substitute in the ten documents introduced. We find no merit either in appellant’s contention that the exemplars were not needed since there were abundant handwritten pleadings in the court file which appellant had acknowledged as his. In fact, from these arguments we are further convinced that no abuse of discretion had been shown, nor has it been shown that the court’s order resulted in harm or prejudice to appellant. See Richardson v. State, 246 So.2d 771 (Fla.1971).

Finally, appellant contends that the court erred in sentencing appellant without reinquiring into appellant’s desire to waive counsel and represent himself at the sentencing proceeding. We agree that it was error to fail to renew the offer of assistance of counsel at the sentencing hearing. Rule 3.111(d)(5), Florida Rules of Criminal Procedure; Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981).

The judgment of conviction on each charge is affirmed. However, the sentences are vacated and the cause is remanded for resentencing.

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


author: ERVIN, Judge.

text:
    Lawrence R. RAETTIG, Appellant, v. STATE of Florida, Appellee.
    No. VV-453.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.

      J. Victor Africano, Live Oak, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Raettig pled nolo contendere to two drug related charges, reserving on appeal his contention that the trial court erred in denying his motion to suppress contraband seized from a camper-truck after he had stopped it at an agricultural inspection station. For the following reasons, we agree with Raettig that the motion to suppress should have been granted, and accordingly vacate the judgments and sentences and remand the case for further proceedings consistent with this opinion.

On August 10, 1979, at approximately 1:00 a. m., Raettig stopped his 1979 Dodge pick-up truck, with an attached camper shell, at an inspection station. An agricultural inspector then asked the appellant for permission to inspect the camper portion of the truck. Raettig testified at the suppression hearing that he attempted to locate the key to the camper, but was unable to find it and so advised the inspector. Raettig told the inspector that the truck belonged to his brother. The inspector, becoming suspicious of the appellant’s manner, summoned Deputy Sheriff Richard Tucker to the scene. Tucker spoke with the inspector and was advised of the circumstances surrounding Raettig’s detention. Tucker asked the defendant for permission to open the camper top but appellant again explained that he did not have the key and further refused to give the deputy consent to forcibly enter his vehicle. Upon that refusal, Tucker approached the truck and made a cursory search of it from the outside. He attempted to look through the windows of the camper but was unable to see anything inside them because they had been painted. He was, however, able to observe through the window of the cab an ordinary road map which appeared to him to have red marks depicting the locations of the inspection stations in Suwannee County. Tucker then directed the appellant to drive his vehicle to the Suwannee County jail some 15 miles from the inspection station.

Although there is some uncertainty in the record, the agricultural inspector apparently accompanied the deputy and the appellant back to the jail to serve as an affiant for a search warrant to search the appellant’s vehicle. Upon their arrival at the jail, Deputy Tucker was advised by an assistant state attorney that he could not search defendant’s vehicle without a search warrant and that the deputy did not have probable cause to search Raettig’s vehicle at that time. Nevertheless, Deputy Tucker, while appellant was still being detained at the jailhouse, went outside and, with his flashlight, began another search of defendant’s vehicle from the outside. He observed at the rear of the truck a crack between the bed of the truck and the base of the camper top which was six to eight inches long and about one-half inch wide. In a kneeling position, and with the aid of the flashlight, he weis able to observe through the small opening some plastic bags and to detect what appeared to him to be marijuana inside the bags. He then crawled underneath the truck and found a seed which he was then unable to identify with certainty, but which was later determined to be of marijuana origin.

Based upon these observations, the deputy obtained a search warrant, and, pursuant to the warrant, broke into the camper top and found eight plastic bags containing 168 pounds of marijuana and a yellow one gallon plastic jug containing hashish. Upon these facts, the trial court denied the motion to suppress.

The state argues that the trial court’s denial of the motion to suppress can be justified on either of two theories: (1) stop and frisk, (2) plain view or open view.

I. Stop and Frisk

We premise our discussion of the subject with the observations that the agricultural inspector clearly had the authority pursuant to Section 570.15(l)(a), Florida Statutes (1979), to stop Raettig’s truck. See Sharpe v. State, 370 So.2d 42 (Fla. 1st DCA 1979); Stephenson v. Dept. of Agriculture & Consumer Services, 329 So.2d 373 (Fla. 1st DCA 1976), aff’d. 342 So.2d 60 (Fla.1976). Moreover, the unique type of administrative detention involved here would permit the inspector to detain appellant for a longer period of time than merely to ask a few preliminary questions. Sharpe v. State, supra, at 44. And, although Deputy Tucker was not an authorized officer pursuant to Section 570.15, his participation in the detention as a deputy sheriff would not invalidate the appellant’s detention. See Gryzik v. State, 380 So.2d 1102 (Fla. 1st DCA 1980). Cf. Section 570.15(3). Finally, because Sections 570.15(l)(b) and 570.-15(l)(a)6 give the agricultural inspector a right to apply for a search warrant to search a stopped truck, it was not improper for Deputy Tucker to require appellant to bring his truck to the county jail for the purpose of conducting a more thorough inspection there. Cf. Miller v. State, 368 So.2d 943 (Fla. 1st DCA 1979). Once, however, the deputy was unable to obtain a search warrant at the jail, any colorable administrative justification for Raettig’s detention necessarily ceased. A search conducted pursuant to an agricultural inspection detention cannot be conducted without compliance with the same probable cause standards applicable to criminal cases. Pederson v. State, 373 So.2d 367, 369 (Fla. 1st DCA 1979), cert. den., 383 So.2d 1203 (Fla.1980); Stephenson v. Dept. of Agriculture & Consumer Services, supra. Raettig, then, should have been free to leave the jail after Deputy Tucker was advised he had no probable cause to obtain a warrant.

The state, however, attempts to justify the deputy’s further detainment of appellant by relying on Section 901.151, Florida’s stop and frisk statute. Although such limited searches are authorized upon an officer’s founded suspicion, not tantamount to probable cause that a crime either is being committed or was committed, that lesser standard does not give the officer carte blanche authority to conduct a frisk which is unlimited in duration. Detentions for such purposes have traditionally been of only transient length. For example, a 30-40-minute stop of a motorist suspected of transporting drugs was held to be of excessive duration and not to qualify under the theory of stop and frisk as an exception to the Fourth Amendment requirement that detentions be reasonable. See Sharpe v. United States, 660 F.2d 967 (4th Cir. 1981).

Finally, reasons often given for authorizing investigatory stops have no applicability to Deputy Tucker’s further detention of appellant at the jail. He had already preserved the status quo, cf. State v. Martinez, 376 So.2d 931 (Fla. 4th DCA 1979), by securing appellant inside the jail. He had already taken a cursory view of appellant’s truck at the inspection station. His safety was not threatened at the jailhouse, and it cannot be seriously suggested that the search of the truck outside the jail was necessitated by the purpose of finding weapons. Cf. M.A.P. v. State, 403 So.2d 1384 (Fla. 2d DCA 1981).

We conclude that there is no conceivable theory upon which the detention below was legally justified, consequently any resulting frisk, whose purpose pursuant to Section 901.151 is restricted to a limited search for weapons, was similarly invalid.

II. Plain View or Open View

We next address the state’s alternative contention that the order denying the motion to suppress can be sustained because the contraband was within the open or plain view of Deputy Tucker. The state places great reliance on Albo v. State, 379 So.2d 648 (Fla.1980), in which the court justified, under plain view, an inadvertent observation of 35-40 bales of marijuana made by a police officer with the aid of a flashlight inside a motor home after he had legally entered it for the purpose of checking its identification number. The state’s reliance on Albo is, however, misplaced. In Albo, the officer had made a prior valid intrusion into the motor home before he observed the contraband. The facts in the instant case disclose no prior intrusion, therefore plain view is inapplicable.

If the seizure of the contraband by Deputy Tucker can be upheld on any basis, it can rest only upon the theory of open view—a theory that applies to two discrete factual situations: (1) where both the officer and the contraband are positioned in a non-constitutionally protected area, so that any resulting seizure is not subjected to any Fourth Amendment strictures, and (2) where the officer is himself located outside of a constitutionally protected area and observes contraband within a protected area, he is then furnished probable cause to seize the item. See Ensor v. State, 403 So.2d 349 (Fla.1981).

From a superficial standpoint it could be argued that the seizure must be sustained under the second category of open view since Deputy Tucker saw the contraband while standing outside the camper-truck. Yet, the existence of such facts does not necessarily mean that our inquiry is now concluded. Being reminded that “the Fourth Amendment protects people, not places ... ”, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the focus of our inquiry should be narrowed to resolving the question of whether it can be said that Raettig exhibited a reasonable expectation of privacy in the contents that were seen within the camper. This inquiry involves the application of Katz’s two-fold test: (1) Did the possessor manifest an actual subjective expectation of privacy to personal effects within an area, and, if so, (2) was his expectation one that society is prepared to recognize as reasonable? Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516 (1967) (Harlan, J., concurring).

Although Katz applied the test to invalidate the admissibility of evidence seized within a structure, it is clear that its rule may also be applied to protect the possessor’s rights of privacy to contents seized from a vehicle. Admittedly, his rights of privacy in a vehicle do not rise to the same level as those in his home or apartment, see United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-2485, 53 L.Ed.2d 538 (1977); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), nevertheless “[a] search even of an automobile, is a substantial invasion of privacy. To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search.” United States v. Ortiz, 422 U.S. 891, 894, 896, 95 S.Ct. 2585, 2587, 2588, 45 L.Ed.2d 623 (1975) (footnotes omitted).

Because then the Katz rule may apply, under appropriate circumstances, to invalidate the seizure of items within a vehicle that were visible outside the vehicle, we must first determine whether Raettig manifested an actual, subjective expectation that the property within the camper would remain free from public scrutiny. Once again, some broad principles from Katz are helpful: a person cannot be said to have exhibited an actual expectation of privacy if he “knowingly exposes [articles] to the public, even in his own home, or office . . . . ” 389 U.S. at 351, 88 S.Ct. at 511. On the other hand, “what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id.

In the instant ease, the record shows that Raettig took deliberate steps to conceal his personal effects inside the camper from public view: the windows of the camper had been painted over, thereby concealing its contents; its doors had been locked, and Raettig had refused access to the officers.

In the final analysis, whether a person may be said to have exhibited a subjective expectation of privacy in his possessions depends upon the totality of all the efforts he takes to secure his property from public view. Cf. Norman v. State, supra. Considering all the overt steps Raettig undertook, we do not consider that his failure to seal off an aperture eight inches in length and Vfe inch in width between the bed of the truck and the camper shell necessarily leads to the conclusion that he thereby knowingly exposed his property to public view. This belief follows the thesis advanced by Professor Lafave in his exhaustive study, Search and Seizure, A Treatise On the Fourth Amendment, § 2.2(b) (1978). La-fave approves the general rule recognizing that the use of a flashlight as an aid in illuminating objects which would otherwise be in open view does not amount to a search. He considers the rule is applicable in situations where a flashlight is directed at an intentionally open or transparent space. However, he suggests that not all flashlight observations are deserving of a plain or open view characterization. Utilizing an analysis based on Katz, he comments:

[S]urely there comes a point where it can be said that a person has “justifiably relied” upon the privacy of his premises even though he has not taken the extraordinary step of sealing off every minute aperture in that structure. Precisely when that point is reached is a matter upon which reasonable minds might differ. But in making that judgment in a particular case, it certainly is not irrelevant that the officer was able to pierce the privacy-by-darkness inside the premises only by directing an artificial light into the building. It is one thing to say that “[t]he plain view rule does not go into hibernation at sunset,” so that a person cannot claim a justified expectation of privacy based upon nothing more than the fact that what could be seen during the day can be seen during the nighttime only by artificial light. It is quite another, however, to conclude that when *a person, in effect, “creates” darkness within premises by the manner in which he closes and secures the building, there can never be a constitutionally-protected expectation that this privacy will not be breached by artificial illumination manipulated from outside.

Lafave, supra, § 2.2(b), pages 253-254 (footnotes omitted).

We find this analysis convincing. One can readily consider that a person has knowingly exposed his personal effects to public view if those objects are easily visible outside the area through, for example, an open door or a transparent window. Given such circumstances, an officer would be furnished probable cause to seize contraband or other incriminating evidence within the area. And his pre-intrusive view would not be considered a search. See Ensor v. State, supra; Tyler v. United States, 302 A.2d 748 (D.C.App.1973); People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973); People v. Wheeler, 28 Cal.App.3d 1065, 105 Cal.Rptr. 56 (1972); State v. Ashby, 245 So.2d 225 (1971). Therefore, if personal effects are openly exposed, it should make no difference whether illumination is used as a means of aiding the officer’s identification of the contents within the area.

When, however, a possessor such as Raet-tig has taken affirmative measures to safeguard his property within an area from public view, a minute crack on the surface of such area can hardly be regarded as an implied invitation to any curious passerby to take a look. Cf. Berryhill v. State, 372 So.2d 355 (Ala.Civ.App.1979). On the record before us, we conclude that Raettig must be considered to have exhibited an actual expectation of privacy in the contents of his camper.

Can it be said, however, that his expectation is one that society is prepared to recognize as reasonable? This question must also be answered affirmatively. In addition to all the actions Raettig took to conceal his property from public view, he was in lawful possession of the camper-truck, having driven it with the permission of his brother. “One who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” Rakas v. Illinois, 439 U.S. 128, 144, n. 12, 99 S.Ct. 421, 431, n. 12, 58 L.Ed.2d 387 (1978) (quoted with approval by the Florida Supreme Court in Norman v. State, supra, at 647). Clearly, then, Raettig must be said to have a “cognizable property right in the invaded area.” Norman v. State, supra, at 647.

The judgments and sentences are reversed, as is the lower court’s order denying the motion to suppress, and the cause is remanded for such further proceedings as are consistent with this opinion.

LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.

      . This two-fold test has been specifically followed by the Florida Supreme Court in two recent cases. See Norman v. State, 379 So.2d 643 (Fla.1980); State v. Brady, 406 So.2d 1093, (Fla.1981).

      . Although, as noted, Section 570.15, Florida Statutes (1979), has been construed as requiring the same probable cause standard applicable to searches in criminal cases, Pederson v. State, supra, there would appear to be no constitutional inhibition to the legislature amending the statute to provide for less exacting standards. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In fact, the legislature took such action in a special 1979 session, by amending Section 570.15(l)(b) and in effect, overruling Pederson. See Ch. 79-587, § 1, Laws of Fla. That amendment, however, is not applicable here as its effective date was December 17, 1979.

      . Superficially the facts in the instant case can be said to be very similar to those in United States v. Wright, 449 F.2d 1355 (D.C. Cir. 1971), in which the seizure of evidence from a garage was sustained on a record revealing that an investigating officer had seen, with the aid of a flashlight, stolen items through a locked, but partially opened, door to the garage. Yet, there were other facts — not present here — which gave the officer the right to take “[a] closer look at a challenging situation . ... ” 449 F.2d at 1357. Before the garage view occurred, the officer had seen “tell-tale sweepings of nuts and bolts” in front of the garage in an area near where an automobile earlier had been stripped of its various parts.


author: SHIVERS, Judge.

text:
    Paul B. ST. JOHN, Appellant, v. STATE of Florida, Appellee.
    No. XX-260.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    Philip G. Butler, Jr., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

We remanded to enable the trial court to determine whether defendant St. John’s own Fourth Amendment rights were violated (whether defendant St. John had a legitimate expectation of privacy in his code-fendant’s garbage). St. John v. State, 400 So.2d 779 (Fla. 1st DCA 1981).

Following remand, St. John apparently conceded to the trial court that he was unable to demonstrate that his Fourth Amendment rights had been violated and the trial court entered an order finding that St. John was unable to show either a legitimate expectation of privacy or standing to complain of Fourth Amendment violations. Consequently, the appealed order denying St. John’s motion to suppress is affirmed.

AFFIRMED.

WENTWORTH, J., and LILES, WOOD-IE A. (Retired), Associate Judge, concur.


text:
    Charles YEISER, Appellant, v. Wendell ZIMMERMAN, Appellee.
    No. ZZ-422.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    Griffin Helwig, of Crider & Helwig, P. A., Jacksonville, for appellant.
    David M. Wiesenfeld, of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Besett v. Basnett, 389 So.2d 995 (Fla.1980).

ROBERT P. SMITH, Jr., C. J., and SHAW and JOANOS, JJ., concur.


text:
    William L. THOMSON, C. P. A., Appellant, v. John J. PETHERBRIDGE, C. P. A., Joseph S. Knecht, C. P. A.; and Thomson, Petherbridge & Knecht, P. A., Appellees.
    No. ZZ-423.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    George D. Gabel, Jr. and Russell W. La Peer, Jacksonville, for appellant.
    Charles P. Pillans, III and Peter D. Webster of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellees.
   PER CURIAM.

This court sua sponte notes that the appellant is attempting to prosecute an interlocutory appeal from an order dismissing Counts II through IX of his Second Amended Complaint against the appellees. Such an interlocutory appeal is not permitted by Florida Rule of Appellate Procedure 9.130. An exception to the rule lies when a count states a separate and distinct cause of action not interdependent with claims remaining for the trial court. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). Counts presented by the appellant each involve an aspect of his previous business relationship with the appel-lees, so the counts do not come within the Mendez exception.

We have treated the appeal as a petition for certiorari. Goff v. General Motors Corp., 292 So.2d 594 (Fla. 2d DCA 1974). However, the grounds argued by the appellant do not show a clear departure from the essential requirements of law in order to persuade this court to issue the extraordinary writ. Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). The appellant’s right to review on these grounds must await final judgment.

The petition for certiorari is denied.

SHAW and JOANOS, JJ., and ERNEST E. MASON (Circuit Judge, Ret.), Associate Judge, concur.


text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. PENSACOLA HOME & SAVINGS ASSOCIATION, Appellee.
    No. AC-439.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    L. Kathleen Horton of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellant.
    Charles L. Hoffman, Jr. of Shell, Fleming, Davis & Menge, Pensacola, for appel-lee.
   PER CURIAM.

South Carolina Insurance Company appeals a summary judgment finding it liable to its named insured for the remainder of the coverage after compensation of a loss-payable mortgagee, see South Carolina Insurance v. Pensacola Home & Savings, 393 So.2d 1124 (Fla. 1st DCA 1981). The judgment provides for interest at the rate of 8% from August 22, 1978.

There is no error except in the award of pre-judgment interest. The parties agree that the appropriate rate is 6%, § 687.01 Fla.Stat. (1979). The claim of the named insured was made May 29, 1980, and was payable 60 days thereafter. Accordingly, the judgment is modified to provide for 6% interest from July 29, 1980, and as modified is AFFIRMED.

ERVIN, BOOTH and THOMPSON, JJ., concur.


author: JOANOS, Judge.

text:
    FLORIDA GAS COMPANY, a corporation, and Lametti & Sons, Inc., a corporation, Appellants, v. SPECTRA-PHYSICS, INC., a corporation, Appellee.
    No. AC-478.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.

      Charles T. Boyd of Boyd, Jenerette, Leemis & Staas, Jacksonville, and Roger W. Rizk of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    William T. Stone, Jacksonville, for appel-lee.
   JOANOS, Judge.

Appellants, Florida Gas Company and Lametti & Sons, Inc., appeal from the final summary judgment entered in favor of ap-pellee, Spectra-Physics, Inc., and from an award of costs which included the travel expenses of appellee’s attorney incurred while attending several depositions. Based upon the “relevant and competent” eviden-tiary matter in the affidavits and depositions considered by the trial judge, we agree with the trial judge’s conclusion that summary judgment was appropriate. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961). We reverse, however, the award of travel expenses because the Florida courts have held on numerous occasions that such expenses are not awardable as costs “absent special provisions of contract or statute.” Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., 374 So.2d 626 (Fla. 2d DCA 1979). See also Sunshine Kitchens, Inc. v. Mallin, 388 So.2d 1260 (Fla. 3d DCA 1980); Aetna Life Insurance Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978).

Due to our affirmance of the summary judgment, it is unnecessary to decide appel-lee’s first point on cross-appeal dealing with Lametti & Sons’ right to contribution. In addition, we find that the trial judge did not abuse his discretion in failing to award attorney’s fees pursuant to § 57.105, Fla. Stat. (1979) as argued in appellee’s second point on cross-appeal.

AFFIRMED in part, REVERSED and REMANDED to correct the award of costs consistent with this opinion.

SHAW, J., and MASON, ERNEST E. (Retired), Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Zoltan FARKAS, Appellee.
    No. AD-32.
    District Court of Appeal of Florida, First District
    Dec. 9, 1981.
    Rehearing Denied Jan. 7, 1982.
    Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellant.
    Thomas L. Powell of Douglass, Davey & Cooper, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Fried, 357 So.2d 211 (Fla. 3d DCA), cert. denied 364 So.2d 891 (Fla.1978).

ERVIN, BOOTH and THOMPSON, JJ., concur.


author: BOARDMAN, Judge.

text:
    Gary Leroy NANK, Appellant, v. STATE of Florida, Appellee.
    No. 80-2318.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    John Thor White, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant was charged with possession of marijuana and drug paraphernalia following the execution of a search warrant at his home. He contends on appeal that the evidence seized should have been suppressed because the officers violated Section 933.09, Florida Statutes (1979) when executing the search warrant. We agree and reverse.

The evidence was undisputed that the police officers opened an unlocked screen door and stepped into the house without first knocking and giving notice of their authority and purpose as required by section 933.09. See Benefield v. State, 160 So.2d 706 (Fla.1964). Failure to follow this procedure renders the search illegal. This is so even where, as here, the state contended at the suppression hearing that appellant would have attempted to dispose of the contraband if the officers announced their presence, since no evidence was introduced to support this contention. State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972).

Accordingly, we hold that it was error for the trial court to deny appellant’s motion to suppress. Appellant’s judgment and sentence for possession of drug paraphernalia and the order placing him on probation for possession of marijuana are REVERSED and the cause REMANDED with instructions to discharge appellant.

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


text:
    LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Michael FROST and Susan Frost, husband and wife, Appellees.
    No. 80-2345.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.

      Ted R. Manry, III, and Stephen H. Sears of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Paul Castagliola of Riden, Crawford & Janssen, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Lincoln National Life Insurance Company (Lincoln), defendant in the trial court, appeals from two orders in favor of plaintiffs Michael Frost and Susan Frost (the Frosts) granting the Frosts final summary judgment in the amount of $22,608.77, and taxing costs and awarding attorney’s fees. We reverse both orders.

The Frosts filed a compliant against Lincoln and ABA Industries (ABA) seeking hospitalization and continuing medical expenses under a group insurance policy issued to them by Lincoln through ABA. The parties agreed on the facts, and each filed a motion for summary judgment. Lincoln’s motion was denied, and the Frosts’ motion was granted. This appeal followed timely.

The pertinent facts are: Lincoln issued a group insurance policy to ABA on April 1, 1978. Michael Frost was an employee of ABA beginning on January 22, 1979, and was covered under that policy. His wife Susan became aware of her pregnancy on or before February 3, 1979. Later, on or about June 25, she encountered a medical emergency and was admitted to the hospital, where she gave birth to a stillborn child. As a direct result of the stillbirth, Susan developed kidney failure, requiring her to be hospitalized until August 2, 1979. She also needed continuing medical treatment thereafter. Lincoln paid the Frosts the sum of $2500 under the policy and refused to pay any further expenses.

There is no contention by either party that the terms and conditions of the policy are equivocal or ambiguous.

The material provisions of the policy are:

13. “Illness” means a bodily disorder, disease, pregnancy, mental infirmity or accidental bodily injury. All bodily injuries sustained by an individual in a single accident, or an illness which are due to the same or related cause or causes will be deemed one illness. . . .
ELIGIBLE INDIVIDUALS
The individuals eligible for insurance hereunder are as follows:
1. employees who have completed the waiting period and who are actively expending time and energy of at least 30 hours per week in the employ of the Employer (herein called employees within the eligible classes), and
2. dependents of those employees who are meeting the requirements of 1. above.
WAITING PERIOD
The waiting period is three months.
PREGNANCY
Benefits for pregnancy are payable on the same basis as benefits for any other illness.
PRE-EXISTING CONDITIONS
Payment for charges incurred in connection with an illness commencing pri- or to the insured individual’s effective date of coverage is limited hereunder to a maximum of $2,500 unless the charges are incurred.
1. after a continuous period of three consecutive months ending after the effective date of coverage during which the person has received no treatment with respect to the illness, or
2. after a period of twelve consecutive months during which the person is continuously insured hereunder. (Emphasis added.)

The real question for our determination is: Did the trial court err as a matter of law in finding that because Susan’s kidney failure was manifested beyond the three-month waiting period provided' in the policy she was entitled to further benefits for hospitalization and continued medical treatment? We answer the question in the affirmative.

The actual issue before the trial court was whether Susan’s kidney failure was “due to the same or related cause or causes” as her pregnancy. It is undisputed that the kidney failure was a direct result of the stillbirth, so the issue then becomes whether the stillbirth was “due to the same or related cause or causes” as the pregnancy.

There can be no doubt that the stillbirth could not have occurred had there not been a pregnancy. Nevertheless, a distinction can be made between stillbirths that are a result of the pregnancy itself and those that are caused by some external agency. Some fetuses are stillborn due to some genetic defect in the mother or the fetus, incompatibility of the fetus with the mother’s system, or inadequate prenatal care or nutrition. In these cases, we believe the stillbirth can logically be said to be due solely to the pregnancy. If Susan’s stillbirth was due to such a cause, the Frosts are precluded from further recovery under Lincoln’s policy.

On the other hand, some fetuses die as a result of external causes such as infection by a pathogenic organism (e.g., virus or bacteria) or physical trauma when absent such trauma they would have been carried to term and would have been delivered as healthy infants. A stillbirth caused by such an outside agency (an infection or an accident) is not, in our opinion, due to the same cause or causes as the pregnancy, and if such an agency was operative here, the Frosts would be entitled to further benefits under the policy.

The record before us does not disclose the cause of the stillbirth; therefore, neither party was entitled to summary judgment. Accordingly, the summary judgment in favor of the Frosts is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

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

      . ABA Industries is not involved in this appeal.

      . It is undisputed that the policy provides that dependents of employees are not eligible for benefits until the employee completes the three-month waiting period.


text:
    David L. HUNTER, Appellant, v. RICHIE’S ECONOMY CARS and Liberty Mutual Insurance Company, Appellees.
    No. ZZ-46.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.
    Bernard J. Zimmerman and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   JOANOS, Judge.

The deputy commissioner’s award of compensation benefits was based upon an erroneous determination of the effective date of the 1979 amendments to § 440.12(2)(a), Florida Statutes, regarding the maximum compensation rate. This Court has consistently held that the effective date of § 440.-12(2)(a) (1979) is July 1, 1979, not August 1, 1979. Gunite Works, Inc. v. Lovett, 392 So.2d 910 (Fla. 1st DCA 1980); Ridgeway Transfer & Storage v. Fletcher, 390 So.2d 821 (Fla. 1st DCA 1980); Glerici Masonry & Plaster v. Profit, 393 So.2d 612 (Fla. 1st DCA 1981). Admittedly, the decision in Lovett was made without the benefit of Chapter 80-236, which specifically amended § 440.12(2)(a) to change the effective date to August 1, 1979. Lovett was reaffirmed, however, in the Ridgeway Transfer & Storage and Clerici Masonry cases that were decided after Chapter 80-236 was passed. These two cases can be explained by the rationale, that the substantive rights of the parties are fixed as of the accident date and the legislature’s attempt to retroactively amend the statute by changing the effective date is void as an impairment of a vested right. Sullivan v. Mayo, 121 So.2d 424 (Fla. 1960).

Our reversal of the deputy on the effective date of the maximum compensation rates under § 440.12(2)(a) also brings into issue the effective date of the 1979 amendments to § 440.15(2) (the compensation rate for temporary total disability). In State of Florida, Department of Transportation v. Houlihan, 402 So.2d 490 (Fla. 1st DCA 1981), this Court held that the effective date of § 440.15(2)(a) (1979) is August 1, 1979.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.


text:
    FELLOWS, READ & WEBER, and American Motorists Insurance Company (Kemper Insurance Company), Appellants, v. James J. LANCE, Appellee.
    No. ZZ-50.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Walter E. Beisler of Beisler & Wells, West Palm Beach, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   JOANOS, Judge.

The employer/carrier in this worker’s compensation appeal challenges an award of temporary total disability during a period of time when the claimant was unemployed due to a compensable knee injury. We affirm the deputy’s order and reject the E/C’s argument that physical inability to work is the sole factor in determining temporary total disability.

The evidence reflects that the following took place. Claimant sustained a knee injury on the job yet continued to work until his condition significantly worsened. At that point, he went to a physician, who restricted claimant to limited walking and standing. Claimant tried to return to work but was fired after the supervisor learned of claimant’s limitations. When claimant filed a claim for temporary total disability and medical treatment, the E/C controverted the entire claim refusing to pay even medical benefits. Claimant, therefore, was without funds to" pay for an operation to his knee which his doctor deemed to be necessary. Thus, his activities remained limited and his knee continued to be problematic.

The evidence shows that claimant tried to return to his job, and when he was discharged, tried to find other employment. His testimony, which is consistent with logic, was that employers were unwilling to hire someone currently involved in a worker’s compensation controversy and in need of an operation which would require a fairly lengthy period of recuperation. Although claimant’s physical condition was not so severe as to prohibit him from performing any and all employment, the job market for a person in claimant’s yet unhealed condition did not, according to the evidence, exist.

“Disability” is defined in section 440.-02(9), Florida Statutes (1979) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” In his treatise on worker’s compensation law, Professor Larson states:

Inability to get work, traceable directly to a compensable injury, may be as effective in establishing disability as inability to perform work .... Even without total medical disability, the two essentials are present: wage loss, and causation of the wage loss by work-connected injury. The fact that the wage loss comes about through refusal or unavailability of employment rather than through incapacity to perform the work does not change the result.

Larson, The Law of Workmen’s Compensation, Volume 2, § 57.61.

The E/C has argued that there must be medical evidence of temporary total disability in order for an award of TTD to be made. The cases cited by the E/C do not support this contention, but merely stated that in the absence of medical evidence, the claimant must attempt to return to work or locate other employment. This the claimant has done, without success, and the evidence shows that his inability to find work is the direct result of his compensable injury.

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


text:
    FARMER & IRWIN CORPORATION and Utica Mutual Insurance Company, Appellants, v. Robert M. FERRINI, Appellee.
    No. AB-54.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Eugene N. Betts, Fort Lauderdale, for appellants.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellee.
   PER CURIAM.

Employer/Carrier appeal from a workers’ compensation order awarding claimant permanent total disability benefits. Although there is competent, substantial evidence to support the finding the claimant is permanently and totally disabled, the deputy commissioner erred in finding the claimant reached maximum medical improvement on August 22, 1980, based upon Dr. Messner’s testimony. In his deposition taken on August 22, 1980, Dr. Messner testified the claimant had reached maximum medical improvement at that time. However, he further testified he last saw the claimant on May 30, 1980. Therefore, since nothing in the record supports a maximum medical improvement date later than May 30, 1980, and the claimant concedes this point, we reverse the finding of maximum medical improvement on August 22, 1980, and remand for clarification by the deputy commissioner. Otherwise, the order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for clarification.

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


text:
    PEPPAS CONTRACTOR AND DEVELOPER and Commercial Union Assurance Companies, Appellants, v. Robert AYERS, Appellee.
    No. AB-227.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.

      Ronnie K. Witlin, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff and R. Cory Schnepper, Miami, for appellee.
   PER CURIAM.

The employer/carrier appeal from a compensation order awarding claimant 30 percent permanent partial disability benefits based on a loss of wage earning capacity and refusing to grant the employer/carrier a credit for temporary total compensation paid by the employer/carrier after MMI. We affirm the award of compensation benefits and reverse the deputy commissioner’s disallowance of credit for the temporary total compensation paid after MMI.

In Belam Florida Corporation v. Dardy, 397 So.2d 756, 759 (Fla. 1st DCA 1981), we held that an overpayment of compensation benefits may be applied as a credit against compensation found to be due in another class if a reasonable basis for the overpayment exists. In this case, the deputy disallowed the credit prior to this court’s decision in Dardy, supra. We, therefore, remand for a determination by the deputy of whether a reasonable basis for the overpayment exists. University of West Florida v. Nall, 404 So.2d 381 (Fla. 1st DCA 1981).

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


text:
    STATE of Florida, Sunland Center Division of Risk Management, Appellants, v. Peggy McCALL, Appellee.
    No. AB-239.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.

      Wendell J. Kiser and W. Michael Miller, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Bill McCabe, of Shepherd, McCabe & Cooley, and Edward H. Hurt, of Hurt & Parrish, Orlando, for appellee.
   SHIVERS, Judge.

Employer/Carrier appeal from a workers’ compensation order awarding claimant temporary total disability benefits, 12% permanent partial disability benefits based upon a loss of wage-earning capacity, payment of hospital and medical bills, and the right to reasonable attorney’s fees and costs. We affirm in part and reverse in part.

Claimant suffered a compensable industrial injury to her back on June 14, 1978, October 17, 1978, and January 10, 1979, while working for the employer. On January 23, 1979, Dr. Gresham diagnosed claimant’s condition as post-dural low back ache with recurrent strain. The claimant continued to work for the employer through April 29, 1979, when the pain in her back became so severe she went to the hospital emergency room. Dr. Van Ore, claimant’s family physician, hospitalized the claimant on May 2, 1979, through May 7, 1979, diagnosing her condition as an acute lumbo-sacral sprain.

On May 10,1979, the employer discharged the claimant because her sick leave had expired and she had not returned to work. Between May 1979 and October 1979, claimant remained unemployed. She testified that she applied for various jobs through the newspaper, employment office, and the City and County Governments without success. She received unemployment benefits from July 7,1979, through October 27,1979. As part of claimant’s unemployment compensation application, Dr. Van Ore certified that claimant was unable to work between May 4, 1979, and July 5, 1979, and was presently restricted to performing only light work.

On October 23, 1979, Dr. Zilioli examined the claimant, suspected she had a “possible herniated disc” and recommended a myelo-gram which was never performed. He testified that the claimant was capable of performing light work between April and October 1979. He discharged the claimant on November 13, 1979.

The deputy commissioner awarded claimant temporary total disability benefits from April 29, 1979, to October 27, 1979, with an unemployment compensation setoff to the employer/carrier, 12% permanent partial disability benefits based upon a loss of wage-earning capacity, payment of hospital and medical bills, and the right to reasonable attorney’s fees and costs.

There is competent, substantial evidence to support the award of temporary total disability from April 29, 1979, through July 5,1979, based upon claimant’s hospitalization until May 7, her testimony of continuous pain and inability to work, and Dr. Van Ore’s certification to the unemployment compensation office that claimant was unable to work from May 4 through July 5, 1979. However, there is insufficient evidence of temporary total disability from July 5 to October 27, 1979. Dr. Zilioli testified that the claimant was capable of many light work activities during this time period and neither Dr. Van Ore’s medical records nor any of the remaining testimony or evidence indicated that the claimant was unable to work after July 5, 1979. On her application for unemployment compensation the claimant indicated she was capable of performing light work and she even testified she was willing to work and thought there was something she could do. When asked about her unsuccessful job search, claimant replied there were no openings at the various places she applied for a job, indicating she could not find a job due to the unavailability of work rather than due to any disability. Where there is no medical evidence to support a finding the claimant is unable to work as a result of the accident, he or she must make an adequate work search or a conscientious effort to return to work in order to establish an inability to work. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). Therefore, the award of temporary total disability benefits from April 29, 1979, to July 5, 1979, is affirmed and the award of temporary total disability from July 5, 1979, to October 27, 1979, is reversed.

The award of 12% permanent partial disability benefits due to loss of wage-earning capacity must be reversed because there was no medical testimony that claimant sustained an anatomical impairment and no finding of a permanent anatomical impairment, which is a prerequisite to a compensation award based upon wage-earning capacity loss. Krispy Kreme Doughnut Co. v. Pipkins, 389 So.2d 1243 (Fla. 1st DCA 1980); Colonial and Semoran Shell Service v. Grissom, 389 So.2d 1219 (Fla. 1st DCA 1980); Agrico Chemical v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980); Section 440.25(3)(b), Florida Statutes (1978).

The award of hospital and medical bills incurred by claimant as a result of her hospitalization pursuant to Dr. Van Ore’s instructions must also be reversed. Dr. Van Ore was not authorized by the carrier and the award of the hospital bill and attending physicians’ bill cannot be supported on the basis of an emergency situation. See, Orlando Regional Medical Center v. Johnson, 394 So.2d 207 (Fla. 1st DCA 1981); Sunland Training Center v. Brown, 396 So.2d 278 (Fla. 1st DCA 1981). The evidence shows that claimant went to the emergency room in the early morning hours of April 29, 1979, and was advised by emergency room personnel to see her family physician, Dr. Van Ore. She was not admitted to the hospital until May 2,1979, for “observation and evaluation.”

Finally, since the claimant’s attorney has rendered a valuable service to the claimant by securing the award of temporary total disability benefits, claimant’s attorney is entitled to a reasonable attorney’s fee and reimbursement of taxable costs.

AFFIRMED in part and REVERSED in part.

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


text:
    SOUTHLAND CORPORATION and American Motorists Insurance Company, Appellants, v. Minnie JONES, Appellee.
    No. AB-402.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Richard H. Weisberg of Cooper & Riss-man, P.A., Orlando, for appellants.
    B. C. Pyle of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellee.
   PER CURIAM.

Employer/Carrier appeal from a workers’ compensation order awarding claimant temporary total disability benefits from January 14, 1980, through the continuance of claimant’s temporary total disability. We affirm all aspects of the order except the award of temporary total disability benefits for the time period between January 14, 1980, and April 8, 1980.

There is no record evidence, other than the claimant’s testimony, showing she was temporarily and totally disabled between January 14 and April 8, 1980. The treating physician testified that he did not examine or treat the claimant between October 1979 and April 8, 1980, the date the claimant returned for treatment. He also testified that claimant had not obtained and utilized the traction apparatus that he had recommended in October 1979 when she returned to him on April 8,1980. Although claimant did work for one week at a nursing home in early February 1980, her testimony that she left her employment because of pain is insufficient to support the award of temporary total disability since she did not seek medical treatment until almost two months later on April 8, 1980, and did not follow her physician’s advice regarding traction. There was no medical evidence showing that she was unable to work between January and April 1980. Where there is no medical evidence that the claimant was temporarily and totally disabled, total disability cannot be established merely by the claimant’s testimony of an inability to work because of pain. Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981).

AFFIRMED in part and REVERSED in part.

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


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

text:
    RIDGE PALLETS, INC., et al., Appellants, v. Reynold Mathis JOHN, Appellee.
    No. AC-273.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    John K. Vreeland, of Lane, Trohn, Bertrand & Williams, P. A., Lakeland, for appellants.
    John Marshall Kest, of Wooten, Honeywell, Rest & Martinez, Orlando, for appel-lee.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier in this workers’ compensation case appeal an order requiring them to pay an injured worker’s attorney a $125 fee for attending his deposition, noticed and taken by the employer and carrier before the onset of other contested proceedings. The deputy awarded this attorney’s fee under authority of Section 440.30, Florida Statutes (1979), which independently of the narrow fee allowances in Section 440.34 requires the employer and carrier to pay a fee to the worker’s attending lawyer “if no claim has been filed” at the time the worker’s deposition is taken by the employer and carrier. Here, when the deposition was noticed and taken, the worker had filed with the employer and carrier a request for wage loss benefits on a paper designated LES Form BCL-13b. Rule 38F-3.18(2), Fla.Admin.Code. We hold this was not the filing of a “claim” shutting off entitlement to a Section 440.30 deposition attorney’s fee. We therefore affirm the deputy’s order requiring the employer and carrier to pay the fee to claimant’s attorney.

Section 440.30, as amended in 1979, provides in part:

Depositions of witnesses or parties . . . may be taken and may be used in connection with proceedings under the Workers’ Compensation Law, either upon order of the deputy commissioner or at the instance of any party or prospective party to such proceedings, and either prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of the claim .... Such depositions may be taken before any notary public, court reporter, or deputy, and the fees of the officer taking the same and the fees of the witnesses . . . shall be the same as in depositions taken for . . . circuit courts. Such fees may be taxed as costs and recovered by the claimant, if successful in such workers’ compensation proceedings. If no claim has been filed, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition. (Emphasis added.)

The dispositive issue here is whether “no claim [had] been filed” when the employer and carrier took the worker’s deposition. If no claim had then been filed, then a fee is payable to his attorney for attending the deposition. But if the worker’s claim had then been filed, no fee for those services was payable by the employer and carrier unless and until the worker prevailed on a controverted claim for medical benefits only, or a deputy commissioner determined that the carrier acted in bad faith in handling his claim, causing the worker economic loss, or the worker prevailed on a contested issue of compensability. Section 440.-34(2).

The parties here agree that at the time the employer and carrier took the worker’s deposition the only action the worker had taken arguably amounting to filing a claim was his submission to the carrier of a “request for wage loss benefits” on a form styled “LES Form BCL-13b.” This action was the entirely appropriate first step toward the collection of wage loss benefits under the 1979 amendments, to the Workers’ Compensation Act and the Division’s implementing rules. In order to qualify for the wage loss benefits available under Section 440.15(3)(b), the act requires the worker to report wage losses monthly to the employer. Section 440.185(10). This same provision gives the Division authority to prescribe by rule how such losses should be reported and what forms should be used. The Division’s implementing rules require the worker to report wage losses to the carrier, without simultaneous report to the Division, using the LES Form BCL-13b it has devised. Rule 38 F-3.18(2), Fla.Admin. Code. Then, in accord with Sections 440.-20(4) and (6), the Division’s rules require the employer either to pay the requested wage loss voluntarily and within 14 days or to file with the Division, within 21 days, a notice to controvert the request, denying any right to benefits. Rule 38F-3.18(3), Fla.Admin.Code. The rules are silent concerning the steps a worker should take to establish a claim before the Division if the employer files a notice to controvert a wage loss request, as the employer did here after taking the worker’s deposition.

The employer and carrier contend that the submission of the BCL-13b form to the carrier ended access to Section 440.30 attorney’s fees because the form in several places uses the word “claim” and the Division in another of its rules required that “claims” for wage loss should be filed on the BCL-13b form only. Rule 38F-3.-10(4)(g). They also point out that this court referred to a BCL-13b'form filed with an employer as a “claim” for purposes for assessing “bad faith” attorney’s fees in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

We are not persuaded that the bare mention of the word “claim” on this form, and our reference to the form as a claim in an entirely different context, should control our determination of whether submitting the form to the carrier ended a worker’s right to have his deposition taken with an attorney present without cost to him. About the only general observation that can be made about Section 440.30 is that it is an attempt by the Legislature to strike an appropriate balance between two potentially adverse interests: on the one hand, the employer and carrier may have need to evaluate the injured worker’s sworn testimony in its investigation to decide whether to pay or to continue benefits voluntarily; on the other hand, the injured worker has a corresponding need for lawyerly assistance in preparing and giving his testimony, lest he be unduly disadvantaged under questioning by the lawyer for his potential adversaries, should he file a claim.

We are at a loss to conceive how Section 440.30, interpreted as appellants would have it, could ever operate to secure an attorney’s fee for a worker whose deposition is being taken to determine whether he sustained a compensable wage loss. It seems to us that prior to receiving a request for wage loss benefits, an employer is unlikely to know whether the worker is suffering a wage loss, much less whether he will request benefits. We doubt very much that such an employer, blissfully ignorant before receiving the BCL-13b request for benefits, would have any active interest in deposing the injured worker. Yet appellants would have us say that the request informing the employer of the possible need for a deposition also terminates the worker’s right to representation at that deposition at the employer’s expense. This interpretation makes Section 440.30 nonsensically technical even by Chapter 440’s awesome standards of complexity. We decline to nullify the statute in that way.

Chapter 440 does offer some guidance as to when a claim has been filed. Both Sections 440.19(2)(d) and 440.25(1), Florida Statutes (1979), provide that “claims” are to be filed with the Division, as does Florida Workers’ Compensation Rule of Procedure 5. Here the Division was a stranger to activities of the parties until the carrier filed the notice to controvert, since the Division does not receive a copy of the initial BCL-13b wage loss request. In addition, Section 440.25(1), allowing the self-executing features of the Act to work first, provides that no “claim” should be filed until the benefit claimed is due but unpaid. At the time the worker here submitted his request to the carrier, a “claim” would have been premature because the statute gives the carrier 14 days after the submission to pay the benefits. Finally, when a “claim” has been filed, the revised act now imposes affirmative duties on the Division to investigate and within 10 days to make an advisory decision on whether the claimed benefits are due. Section 440.19(1). Obviously, the Division made no such response to the filing of the BCL-13b request with the carrier here, since the Division did not know the request had been made.

The question therefore is put again: when, in a case where the wage loss request is controverted, is a “claim” filed with the Division sufficiently in accord with the provisions above to end the right to attorney’s fees under Section 440.30? We are compelled to the conclusion — -which we readily concede transcends the literal language of the statute — that the claim is filed when the carrier has notified the Division it is controverting the request. Before the filing of a notice to controvert, the worker’s BCL-13b request is just that, an informal inquiry into whether the employer will pay compensation voluntarily without involving the machinery of the Division and administrative proceedings. Once the notice to controvert is filed with the Division, however, the request represents the worker’s assertion of his right to benefits now due. We are not certain from the rules whether the employer gives the Division clear notice of the specifies of this assertion when it files the notice to controvert. But we see no reason why the Division by rule could not require the employer to append a copy of the wage loss request to the notice to controvert filed with the Division.

The point at which the Division has notice of the asserted right to benefits and must begin its independent investigation appears to us the only logical point at which to end the worker’s attorney’s right to a fee for deposition attendance. Under Section 440.20(10)(b), the Division must investigate, hold hearings, and take other appropriate action when an employer files a notice to controvert claimed compensation. The filing of the notice to controvert in this context also ought to trigger the Division’s responsibility under Section 440.19(1) to render an advisory decision within 10 days.

We also think it is more efficient and consistent with the self-executing thrust of the Act to treat the Form BCL-13b request as transformed into a “claim”, once controverted, than it would be to require the worker to file another request or claim with the Division after the employer has filed a notice to controvert. The worker’s only duty under the Act and the rules is to file the initial BCL-13b form with the carrier. There is no good reason apparent to us to impose any additional burden on the worker when all parties should already have notice of the controversy in question. Should the worker decide at that point to seek some other unrelated benefit, of course, the regular filing of a claim with the Division would be required.

Accordingly, we hold that a worker’s right to attorney’s fees under Section 440.30 ends, if a request for wage loss benefits has been controverted, when the notice of controversy is filed with the Division and the Division must begin its active management of the case. Since the worker’s deposition here was taken before the filing of the notice to controvert the request, the deputy’s award of attorney’s fees is AFFIRMED, and the Division is directed to clarify its rules for the filing of claims authorized by Section 440.25(1).

MILLS and SHIVERS, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Daniel L. CRIBBS, Appellee.
    No. 81-505.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 14, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee.
   CAMPBELL, Judge.

This case arises out of a three-count robbery information filed against appellee and two others in Hillsborough County. The issue to be decided is whether a warrantless search of an automobile which results in seizure of a shotgun is justified when a party, who is not the owner of the vehicle but apparently in possession of it, has given consent to that search. We hold that the search in this case was legally conducted and reverse the trial court’s order.

Responding to a “prowler call,” police officers in Gainesville, Florida, spoke with the calling party who claimed three men had threatened him with a gun and forced him to leave the parking lot of his apartment building. While searching the area, the officers found a car occupied by a man sitting in the driver’s seat and matching the description given by the witness. This man, Jesse Baisden, got out of the car at the officers’ request and was read his Miranda rights. Although Baisden waived his Miranda rights and responded to the officers’ inquiries, he was not arrested immediately. The officers observed other articles in the vehicle which had been described to them by the witness. When asked why he was parked at the apartment complex, Baisden stated he had just let his girlfriend out and was waiting for her to return. Continuing their investigation, the officers asked if the vehicle belonged to Baisden, to which he first responded that it did, but later stated that it did not. He also stated he was from somewhere north of Gainesville and was just “passing through.”

When the officers asked Baisden for permission to search the car, he willingly consented, and the search resulted in discovery of a short-barreled shotgun under the driver’s seat. Appellee, the owner of the car, who was not present during the events leading up to the search of the car, was charged with three counts of armed robbery in Hillsborough County. The shotgun found under the seat was suppressed by the lower court from use at his trial.

We hold that suppression of this shotgun was error and reverse the order of the trial court. Once appellee allowed Baisden to possess his car exclusively, he lost his expectation of privacy, and therefore his standing to challenge the search of the automobile on the basis of lack of probable cause to arrest or search Baisden. State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981).

Although there is strong evidence of consent here, the trial court did not reach the consent issue, and instead granted the motion to suppress on lack of probable cause to arrest or search Baisden. We, therefore, reverse and remand to the trial court for treatment consistent herewith.

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


text:
    HERMAN J. HEIDRICH & SONS, Peninsular Fire Insurance Company, Serviced by: Corporate Group Service, Inc., Appellants, v. James R. FLOYD and Department of Labor and Employment Security, Appellees.
    No. AC-355.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.

      Joseph E. Smith of Miller & Cooper, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney & Adler, Orlando, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier appeal from the deputy commissioner’s order requiring that they provide claimant medical examination and treatment at the Duke University Medical School in Durham, North Carolina. The deputy’s order satisfies the standard for out-of-state medical treatment established by Decker v. City of West Palm Beach, 379 So.2d 1004 (Fla. 1st DCA 1980), and its antecedents, by finding in effect that equally beneficial treatment is not available in Florida. The deputy rightly held that the availability of local treatment facilities does not, in and of itself, conclude the issue; and that the controlling question is whether those facilities can afford equally beneficial treatment. Neither do we find fault with the order’s reference, a predicate for the ultimate finding complained of here, to medical evidence introduced at an earlier hearing, indicating the likely extent of benefits from further local medical efforts. As against appellants’ claim that this reference violates IRC decisions precluding consideration of medical evidence introduced at a prior hearing but not at the hearing on the matter now in issue, we find that the evidence referred to was sufficiently elaborated in the deputy’s prior compensation order, which without objection was part of the record in the present proceedings, to support the deputy’s ultimate finding now that out-of-state medical treatment is reasonably required.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.

      . City of Hallandale v. Jones, IRC Order 2-3440 (1978); Davidson v. Nezelek, IRC Order 2-3229 (1977); Newman v. Burdine’s Dadeland, IRC Order 2-2826(P) (July 25, 1975); IRC Order 2-2960 (Feb. 24, 1976), cert. denied, 339 So.2d 1167 (Fla.1976).


text:
    Norman David POLLREISZ, Appellant, v. STATE of Florida, Appellee.
    No. AD-54.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.

      Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of a probation order requiring restitution of an amount equal to the full value of the aggregate thefts committed by appellant and a co-defendant. We affirm the order appealed.

Appellant has been placed on probation with a requirement that he make full restitution, while his co-defendant has been sentenced to a term of imprisonment with no requirement of restitution. We find no error in this procedure. Of course, a probationer may not be required to make restitution in excess of the amount of damage caused by his criminal conduct. Fresneda v. State, 347 So.2d 1021 (Fla.1977). But where criminal activity is undertaken in concert with others, the method of pro-rating any required restitution is a matter within the discretion of the trial judge. Cf., B. A. D. v. State, 379 So.2d 1311 (Fla. 1st DCA 1980). We find no abuse of discretion in the circumstances of the present case.

The order appealed is affirmed.

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


text:
    Eric JOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2170.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

The defendant appeals asserting his three-year mandatory minimum sentence to be improper. Defendant was sentenced for robbery with a firearm as a youthful offender pursuant to Chapter 958, Florida Statutes. This sentence is vacated in accordance with Trent v. State, 403 So.2d 1131 (Fla. 4th DCA 1981), and Section 958.-05(3), Florida Statutes (1979).

Reversed and remanded for resentencing in accordance with the above cited authorities.

REVERSED AND REMANDED.

MOORE, BERANEK and HERSEY, JJ., concur.

      . This Court’s previous opinion issued October 28, 1981, is withdrawn and the present opinion substituted.


text:
    DEPARTMENT OF REVENUE, Appellant, v. RYDER SYSTEM, INC., Appellee.
    No. AB-419.
    District Court of Appeal, First District.
    Nov. 23, 1981.
    Jim Smith, Atty. Gen., Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellant.
    Robert S. Goldman and Mitchel B. Hai-gler of Messer, Rhodes, Vickers & Hart, Tallahassee, for appellee.
   PER CURIAM.

The Department of Revenue appeals the trial court’s final declaratory judgment finding invalid a proposed assessment of rental tax, penalties and interest. Chapter 212, Florida Statutes. The department asserts the circumstances are similar to those found in Zero Food Storage Division of American Consumer Industries, Inc. v. Department of Revenue, 330 So.2d 765 (Fla. 1st DCA 1976). In Zero, this court affirmed the trial court’s order upholding the department’s assessment of rental tax. Zero, however, is distinguishable. The trial court’s order was based upon a finding that rent was paid. In this case, the court below found no landlord and tenant relationship and that Ryder Systems, Inc. was not engaged in the business of renting, leasing or letting any real property. Since there was no finding a rental payment was made, the trial court correctly disapproved the tax. The judgment below is, therefore, affirmed.

McCORD, MILLS and ERVIN, JJ., concur.