author: SHIVERS, Judge.

text:
    C. F. MUELLER and the Hartford Insurance Group, Appellants, v. George R. SEARCY, Appellee.
    No. AJ-27.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      Steven A. Rissman, of Cooper & Rissman, P. A., Orlando, for appellants.
    Jesse F. Sparks, Orlando, for appellee.
   SHIVERS, Judge.

Appellants employer/carrier appeal workers’ compensation order of modification awarding claimant permanent total disability benefits and awarding claimant’s attorney a $13,750 fee.

At issue are (1) whether the deputy commissioner, upon modification, may award permanent total disability benefits to claimant based upon his worsened and totally diminished wage earning capacity, and (2) whether the attorney’s fee award is excessive.

Claimant Searcy injured his back in a compensable accident on January 3, 1972. Searcy filed a petition to modify a June 10, 1980, order which found that the claimant had sustained a 30% permanent physical impairment of the body as a whole. Following the modification hearing, the deputy found that the claimant’s condition had worsened since the June 10, 1980, order and that claimant was now permanently and totally disabled based on a total diminution of wage earning capacity. Employer/carrier contend that the deputy has failed to find that the claimant’s permanent impairment has changed, and that the deputy erred in finding claimant to be permanently and totally disabled. Employer/carrier also maintain the $13,750 attorney’s fee is excessive.

There is sound basis for the deputy’s finding that, after the initial order, claimant suffered a total diminution in his earning capacity. This finding is based on competent substantial evidence concerning claimant’s- unsuccessful attempts to find employment within his limitations as well as testimony from claimant’s rehabilitation counselor. The deputy correctly concludes that the claimant had made a good faith effort to find employment within his physical limitations. Unless unsupported by competent substantial evidence, the credibility and sufficiency of this finding are factual determinations to be made by the deputy commissioner and will not be disturbed on appeal. City of Tampa v. Bartley, 413 So.2d 1280 (Fla.App. 1st DCA 1982).

In Fleshe v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), we held that a modification based on change in earning capacity is contemplated by section 440.28, Florida Statutes, and that such a change may be predicated on work search evidence accumulated after initial denial of wage earning capacity loss, where the initial denial was based on an inadequate work search or no work search. Although Fleshe involved a claim for wage earning capacity loss which had been initially denied because of an inadequate work search, the same logic applies where the employer/carrier would deny the claim for permanent disability benefits in excess of claimant’s anatomical rating. The focus in Fleshe is not on the type of benefits being sought, but whether evidence of a change in earning capacity after the entry of the original compensation order is sufficient to support a modification pursuant to section 440.28.

We, therefore, affirm the award of permanent total disability benefits.

As to the attorney’s fee, section 440.-34, Florida Statutes (1971) is the statutory provision in effect at the time of the com-pensable accident. It is a substantive provision insofar as it relates to the entitlement to, and the source of, payment of a claimant’s attorney’s fee. Webb v. Hills Van Service, 414 So.2d 262 (Fla. 1st DCA 1982). Section 440.34, Florida Statutes (1971) provides in part:

440.34. Attorney’s fees; costs; penalty for violations.—
(1) If the employer or carrier shall file notice of controversy as provided in s. 440.20, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorney’s fee, to be approved by the division which may be paid direct to the attorney for the claimant in a lump sum. If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.
(2) There shall be further assessed against such employer or carrier, as costs in said claim, such fees and mileages for witnesses attending the hearing at the instance of claimant, as would be allowed such witnesses in cases at law.

At issue is the reasonableness of the fee to be paid claimant’s attorney by the employer/carrier, not the entitlement to, or source of, payment.

Employer/carrier argue that the fee, amounting to compensation of $312.50 per hour, is excessive. While the time spent on a case is an important factor in considering whether a fee is reasonable, it is not the sole determinant. Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968); Code of Professional Responsibility DR 2-106(B). In addition to the time and labor required, the deputy discussed, among other factors, the difficulty, uniqueness and novelty of the case, the contingent nature of the claim as well as the skill and professional expertise necessary to obtain the satisfactory result. The deputy found that the benefits obtained exceed $89,000. Two of the three expert witnesses testified as to a reasonable fee for claimant’s attorney higher than the $13,750 awarded.

We find there is competent substantial evidence supporting the award.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David A. RICHARDS, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AJ-145.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    David A. Richards, pro se, for appellant.
    Earl H. Archer, Asst. Gen. Counsel, Florida Parole & Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

We affirm the order of the Parole and Probation Commission, rendered after appellant’s biennial review, in which the Commission did not alter appellant’s previously established presumptive parole release date, but did add further particularity to one of appellant’s original aggravating circumstances. We find that the six-month aggravation, clarified by the Commission on biennial review, was proper and based upon competent and persuasive evidence.

Appellant has raised an additional argument to the effect that Florida Administrative Code Rule 23-19.03(1)(b)(3) , which allows the Commission to aggravate an inmate above the matrix time range if the inmate has a “history of alcohol or narcotics abuse,” is violative of the constitutional prohibition against “cruel and unusual punishment.” We find this argument to be without merit.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

       Currently, Florida Administrative Code Rule 23-21.10(4)(a)(2)(b).


text:
    Andre BAROSY, Appellant, v. LANDSCAPE CRANE and Florida Farm Bureau Insurance Companies, Appellees.
    No. AJ-262.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appellant.
    Steven Kronenberg, of Adams, Kelley, Kronenberg & Rutledge, Miami, for appel-lees.
   SHIVERS, Judge.

Barosy appeals a workers’ compensation order granting the claimant benefits for temporary partial disability benefits but denying an attorney’s fee. Although the deputy commissioner determined the carrier handled Barosy’s claim in bad faith, he found Barosy suffered no economic loss as required by section 440.34(2)(b), Florida Statutes (1979). The deputy, therefore, denied the claim for attorney’s fee. We reverse the order to the extent it denied the claim for attorney’s fee.

The record reveals that the deputy commissioner believed the statute required the bad faith handling of the claim to result in an economic loss such as a house foreclosure or a diminished standard of living. The attorney’s fees statute, however, is to be liberally construed. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). Thus, where there is any economic loss due to a bad faith handling of a claim, an award of an attorney’s fee is appropriate. The record on appeal demonstrates payment of the claimant’s benefits was delayed for a considerable period. This loss of use of the money (TPD benefits), is a sufficient economic loss to justify an attorney’s fee.

Accordingly, the order is reversed to the extent it denied an award of an attorney’s fee. The deputy commissioner is further cautioned to apply the attorney’s fees provisions found in section 440.34, Florida Statutes (1979). The cause is, therefore, remanded to the deputy commissioner with instructions to reconsider the attorney’s fee issue and to enter an order consistent with this opinion.

SHAW and WIGGINTON, JJ„ concur.


author: McCORD, Judge.

text:
    Bruce Tifton WOODS, Appellant, v. STATE of Florida, Appellee.
    No. AJ-426.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.

      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.
   McCORD, Judge.

Having pled guilty to grand theft, appellant appeals the trial court’s order directing that, as a condition of his probation, appellant make restitution in full to the victim, including 15% interest per year. We affirm.

Appellant and Kim Melton burglarized a dwelling, and each stole certain items. Appellant later turned himself in and returned all the items that he personally took. However, Melton had sold some of the items he took during the burglary, and thus all of the stolen items were not returned to the victim. Melton was sentenced to prison. The trial judge sentenced appellant to prison also but suspended all but eleven months of his sentence, requiring that the remaining time be served on probation. As a condition of probation, the judge ordered appellant to make restitution to the victim for the difference between the value of the goods stolen and the goods recovered, plus 15% interest per year. Appellant contends that since all of the goods that he stole were recovered, he should not be made to pay restitution for the unrecov-ered goods for which Melton was responsible. However, in Pollreisz v. State, 406 So.2d 1297 (Fla. 1st DCA 1981), as here, the appellant appealed a probation order requiring that he make restitution of an amount equal to the full value of the aggregate thefts committed by appellant and a co-defendant while the co-defendant was sentenced to prison with no requirement of restitution. The court in Pollreisz affirmed, holding that “[W]here criminal activity is undertaken in concert with others, the method of prorating any required restitution is a matter within the discretion of the trial judge.” Thus, we affirm the restitution requirement in this case.

Appellant further contends that the trial court erred in requiring that he pay 15% interest on the restitution. Section 948.03(1)(g), Florida Statutes, which provides that, as a condition of probation, the court may require that the probationer make restitution to the aggrieved party for the damage or loss caused by his offense “in an amount to be determined by the court.” We find no abuse of discretion in the interest imposed. Payment of interest merely requires full compensation for the victim’s loss.

A discrepancy exists in the record as to the amount of restitution to be paid by appellant. The restitution amount is listed on the judgment and sentence as $550 while the probation order reflects it to be $570. We remand to the trial court for clarification of that amount.

Affirmed but remanded for clarification of the restitution amount.

ERVIN and JOANOS, JJ., concur.


author: MILLS, Judge.

text:
    Robert Sherwin WILKERSON, Appellant, v. Kay Lankford WILKERSON, Appellee.
    No. AI-128.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    Terry P. Lewis of Oven, Gwynn & Lewis, Tallahassee, for appellant.
    Everett P. Anderson, Tallahassee, for ap-pellee.
   MILLS, Judge.

The husband appeals the trial court’s denial of his motion to set aside the trial court’s order which dismissed his Wakulla County divorce proceeding for want of jurisdiction. We affirm.

The following facts are pertinent to this appeal:

1. On 5 June 1980, husband filed for divorce in Wakulla County.

2. In mid-June 1980, the wife and two children moved to Texas.

3. On 23 April 1981, the wife, through her Texas counsel, filed a motion in Wakul-la County to dismiss the Florida proceeding for lack of jurisdiction.

4. On 29 April 1981, wife filed for divorce in Texas.

5. On 1 May 1981, Judge Harper granted wife’s motion to dismiss.

6. No hearing was held on that motion before the judge signed the order, and husband’s counsel had no notice of the order of dismissal until late June or early July of 1981.

7. Husband’s counsel did receive a copy of the motion and proposed order on 1 May 1981.

8. On 2 May 1981, husband signed a “waiver of citation” submitting to the jurisdiction of the Texas courts for purposes of wife’s pending petition for divorce.

9. On 31 July 1981, husband filed a motion in Wakulla County to set aside the trial court’s order dismissing the original Florida petition.

10. On 28 August 1981, the Texas trial court entered its final decree, awarding the parties a divorce and adjudicating the issues of property settlement, alimony, child support, and child custody.

11. On 31 August 1981, a hearing was held in Wakulla County on husband’s motion to set aside the dismissal, which was denied on 3 November 1981.

The issue which is dispositive of this appeal is whether the Texas court had jurisdiction to grant a divorce. It did and we affirm.

The husband consented to the jurisdiction of the Texas court by signing the “waiver of citation,” knowing all the while that he had a divorce petition pending in Florida. He did not consult Texas counsel before signing the waiver. The husband has a master’s degree.

Having obtained jurisdiction over the husband by consent, the Texas court rendered a valid decree of divorce. That portion of the Texas judgment which is final is entitled to full faith and credit; that portion which is interlocutory and subject to modification by the Texas court is not so entitled. See Courtney v. Warner, 290 So.2d 101 (Fla. 4th DCA 1974). Certainly that portion of the Texas decree dissolving the marriage is final. Until such time as the wife attempts to domesticate her Texas judgment in Florida, we are not faced with deciding whether the rest of the decree is entitled to full faith and credit.

We affirm the trial court’s denial of the husband’s motion to set aside.

BOOTH and THOMPSON, JJ., concur.


text:
    Ronnie Ray PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1777.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of probation. However, we note that the uniform commitment to custody document indicates conviction of three crimes. The probationary period for two of the three charges had elapsed before the probation violations occurred. Accordingly, we remand and order the erroneous references expunged from the document in question.

GRIMES, A. C. J., and RYDER and SCHOONOVER, JJ., concur.


author: OTT, Chief Judge.

text:
    Steve STATON and West American Insurance Company, Petitioners, v. ALLIED CHAIN LINK FENCE COMPANY, Respondent.
    No. 81-2155.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.

      Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for petitioners.
    David J. Kadyk, Ted R. Manry, III, and Timothy S. Condon of Maefarlane, Ferguson, Allison & Kelly, Tampa, for respondent.
   OTT, Chief Judge.

By certiorari, the petitioners seek review of an order compelling discovery. We find that the statements sought to be discovered are protected by the attorney-client privilege; therefore, we quash the order compelling discovery.

Kimberly Clark, plaintiff below, filed an action for damages for personal injuries sustained when she fell into a chain link fence. Petitioners and respondent herein are defendants below; Steve Staton owns the property upon which the fence is located, West American Insurance Company is Staton’s insurer, and Allied Chain Link Fence installed the fence some twelve years ago. Staton and Allied have cross-claimed against each other seeking indemnity or contribution.

A major question in the case is whether Staton or Allied caused the fence to be installed with barbs in an upward position. The files and records of Allied dealing with the Staton installation had been destroyed in the normal course of business. Either the employees of Allied who took the Staton order and made the installation could not be identified, or the instruction of Staton with regard to the specification, if any, of barb direction could not be recalled independent of the records. Staton testified under oath that he never discussed the positioning of the barbs with Allied, but Allied challenged the truthfulness of this statement and moved to compel discovery of communications between Staton and a representative of West American limited to conversations Staton had with Allied when the fence was installed. Allied argues that the statements sought to be discovered are not within the ambit of the attorney-client privilege, being only protected by the work product doctrine. This doctrine protects materials prepared in anticipation of litigation. Allied further asserts that the statements fall within the impeachment exception to the work product doctrine. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Miami Transit Co. v. Hurns, 46 So.2d 390 (Fla.1950).

Allied’s arguments are not persuasive. The record reveals that the communications were made by Staton to his insurer for use by the latter in connection with fulfilling its obligation to defend on behalf of Staton. Under the law of Florida, such communications between an insured and its insurer made for the information and benefit of the attorney defending the insured fall within the attorney-client privilege and are not subject to discovery. Vann v. State, 85 So.2d 133 (Fla.1956); Grand Union Co. v. Patrick, 247 So.2d 474 (Fla. 3d DCA 1971).

It concerns us that Staton might have testified under oáth that he never discussed the barbs with Allied, while telling the representative of West American another story. However, since the statement is protected by the attorney-client privilege, it is undiscoverable except in the rarest of circumstances. Affiliated of Florida, Inc. v. U-Need Sundries, Inc., 397 So.2d 764 (Fla. 2d DCA 1981) (waiver); Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974) (contemplation of a crime or perpetration of a fraud).

The work product doctrine is something separate and apart from the attorney-client privilege. Hickman v. Taylor, 329 U.S. at 508, 67 S.Ct. at 392. We have not been made aware of any exception to the absolute privilege accorded attorney-client communications apart from those listed above. Neither have we been pointed to any decision that suggests a waiver might be implicit from Staton’s having put his statement in issue.

For the reasons stated, the order compelling discovery represents a departure from the essential requirements of law; therefore, certiorari is GRANTED and said order is QUASHED.

GRIMES and SCHOONOVER, JJ., concur.


text:
    Jeffrey Alan POLLARD, Sr., Appellant, v. Diana Rita POLLARD, Appellee.
    No. 81-2192.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    David A. Maney and Ann Arledge of Maney & Damsker, Tampa, for appellant.
    Catherine M. Venable of Diecidue, Ferli-ta, Prieto & Nutter, P. A., Tampa, for ap-pellee.
   PER CURIAM.

We affirm. However, our affirmance should not be construed as any indication of our opinion as to the fairness of the property settlement agreement as we do not reach that question.

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


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Paul GULLETT, Appellee.
    No. 81-2197.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Samuel Robert Mandelbaum and William E. Taylor, Asst. Attys. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, St. Pe-tersburg, for appellee.
   HOBSON, Judge.

The State appeals an order of the Circuit Court for Pinellas County granting Paul Randolf Gullett’s motion to suppress contraband seized without a warrant from a closed, brown paper bag located in the front of the passenger compartment of a car. We reverse.

In August, 1981, the State charged appel-lee with unlawful possession of more than 20 grams of marijuana, in violation of section 893.13, Florida Statutes (1981). He pled not guilty and filed a motion to suppress. At the suppression hearing, the only person to testify was Officer Joseph Dibella of the Madeira Beach Police Department.

Dibella testified that he pulled into the parking lot of a beachfront motel while on patrol in a marked car at 9:30 p. m. on April 24, 1981. He routinely patrolled this lot since there “had [been] a lot of burglary there, a lot of break-ins, a lot of juvenile trouble.” He observed a car at the end of the lot parked by a large sign prohibiting parking by persons not hotel guests. As he approached, he saw two heads bobbing up and down in the back seat. Both looked back at his car, and then one quickly bent down and got back up as if hiding something.

Dibella radioed in and exited his car. As he walked towards the car, he smelled the odor of marijuana emanating from within. The windows were down and he asked the two, a boy and a girl, for identification. He ascertained their names, discovered both were 16 years old, and determined neither was a hotel guest. While talking to them, he noticed a partially-filled can of beer on the floor. He asked them whose beer it was and they replied that it was theirs. He then asked both to exit the car. As they stepped out, he observed a large, brown, grocery-type paper bag on the back seat, a small baggie containing a green leafy substance (later identified as marijuana) wedged in the crease between the back rest and bench portion of the rear seat, and a marijuana “bong” on the rear floorboard. He placed each under arrest for possession of alcoholic beverages by a minor and for possession of marijuana. He patted down the boy but did not pat down the girl. He then removed the paper bag from the back seat, which contained a six-pack of beer and some empty beer cans. While placing it on the hood of their car, he noticed a closed bag on the floorboard underneath the steering wheel which was of the same type he had just removed from the back. He reached in, grabbed one side of it, and pulled it towards him. As he did so, it opened. Inside, he noticed several plastic bags of marijuana, a few plastic bags of black pills, and a .22 caliber pistol. The boy and girl denied any knowledge of this bag. However, the girl indicated that it was probably her brother’s, appellee’s. They told the officer that he and his girlfriend had driven them to the parking lot and that the car belonged to his girlfriend.

After his apprehension, appellee was advised of his Miranda rights. He then admitted ownership of the contraband seized from the bag in the front.

The warrantless search of the bag in the front is justified under the automobile exception. The officer smelled the odor of marijuana. Thus, he had probable cause to believe that the car contained marijuana. As a result, he had the right to search the bag in the front because it may have contained marijuana. See United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

A second justification for the war-rantless search of the bag in the front is the search incident to arrest exception. The officer discovered the contraband in the passenger compartment immediately after placing the boy and girl under arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

Accordingly, we reverse the order granting appellee’s motion to suppress and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

OTT, C. J., and GRIMES, J., concur.


text:
    Louis James FORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-2556.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment and sentence is affirmed. However, that portion of the court’s order requiring appellant to pay court costs and to make payments to the Victim’s Crime Compensation Fund is stricken because the appellant was found insolvent by the trial court. Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

GRIMES, A. C. J., and RYDER and SCHOONOVER, JJ., concur.


author: SCHOONOVER, Judge.

text:
    UNITED ENGINES, INC., Appellant, v. CITMOCO SERVICES, INC., Appellee.
    No. 82-929.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    James G. Brehm of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P. A., Tampa, for appellant.
    Kerry H. Brown of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appel-lee.
   SCHOONOVER, Judge.

This is an interlocutory appeal from an order denying a motion to dismiss or transfer because of improper venue. We affirm.

Appellant, United Engines, Inc., a Delaware corporation with its principal place of business in Oklahoma City, Oklahoma, manufactures a water desalinization and purification device known as a Sea Free Water-maker for use aboard yachts. During the year 1981, the appellant sold a watermaker to the appellee, Citmoco Services, Inc., in Broward County, Florida. When the appel-lee became dissatisfied with the watermaker, it filed an action against the appellant in Hillsborough County, Florida. The four-count complaint alleged breach of warranty, breach of warranty of fitness for a particular purpose, breach of express warranty, and breach of contract.

In response to the complaint, the appellant filed a motion to dismiss or transfer because of improper venue and a motion for change of venue. An affidavit executed by the general manufacturing manager of the appellant accompanied the motion. According to the affidavit, all negotiations and the sale itself took place in Broward County, Florida, and the product was delivered and installed in Broward County. Appellant had no agent, employee, representative or property in any county in the state of Florida other than in Broward County. Payment for the watermaker was received by the appellant in Oklahoma.

After considering the appellant’s motions, and a motion for rehearing, the trial court entered an order finding that appellant was doing business in Florida and that it was not authorized to do so. The court held that pursuant to section 607.354(2), Florida Statutes (1981), the defendant could defend the lawsuit filed against it without being properly authorized to transact business in the state of Florida but could not claim the privilege of venue afforded foreign corporations by section 47.051, Florida Statutes (1981). The appellant’s motions were accordingly denied.

The grant of a privilege of being sued in a particular county to a defendant is a creature of statute and not of the common law. Linger v. Balfour, 102 Fla. 591, 136 So. 433 (1931). At common law, the venue of a transitory action, such as the case sub judice, could be laid in any county where jurisdiction over the person of the defendant could be acquired, and the defendant had no privilege of being sued in any particular place. Therefore, if section 47.051 is not applicable to the appellant, under the common law, the appellee had the right to file its action in Hillsborough County, Florida. § 2.01, Fla.Stat. (1981).

The appellant contends that section 47.-051 is applicable to the case sub judice, and therefore the trial court erred in denying its motions. Section 47.051 provides as follows:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

We initially note that the party challenging venue has the burden of proof to show venue is improper. Cleveland Compania Maritima v. Logothetis, 378 So.2d 1336 (Fla. 2d DCA 1980).

The plaintiff is not required to plead facts in its complaint in support of its selection of venue, and if a defendant desires to contest the venue chosen by the plaintiff, he has the burden of clearly proving that the venue selected by the plaintiff is improper. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Bank of Melbourne & Trust Co., 238 So.2d 665 (Fla. 4th DCA 1970).

A foreign corporation may be lawfully doing business in the state of Florida for the purpose of section 47.051 if it is properly authorized to transact business in the state or if it is not considered to be transacting business under section 607.-304(2), Florida Statutes (1981). In the case sub judice, the appellant did not deny that it had not received authorization to transact business in the state of Florida. Additionally, it did not carry its burden of proof to show that it was not transacting business pursuant to section 607.304(2). Answers to interrogatories filed by the appellant admit it had ah employee in Broward County, Florida, and it had effected sales of more than $100,000 in a two-year period.

We hold that a foreign corporation transacting business in the state of Florida within the meaning of section 607.304, Florida Statutes (1981), without receiving authority to do so is not lawfully doing business in the state of Florida and accordingly is not afforded the privilege of venue set forth in section 47.051. It may defend an action pursuant to section 607.354, but like a nonresident individual or a foreign corporation not doing business in Florida, it must defend a transitory action against it in any county where jurisdiction over it is obtained. § 47.011, Fla.Stat. (1981); Hollywood Memorial Park, Inc. v. Rosart, 124 So.2d 712 (Fla. 3d DCA 1960); St. Mary’s Oil Engine Co. v. Jackson Ice & Fuel Co., 224 Ala. 152, 138 So. 834 (1932).

We accordingly affirm.

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

      . For a discussion of local and transitory actions, see McMullen v. McMullen, 122 So.2d 626 (Fla. 2d DCA 1960).


text:
    STATE of Florida, Petitioner, v. Lorenzo WHITE, Respondent.
    No. 82-1345.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for respondent.
   SCHOONOVER, Judge.

The State of Florida has filed a petition for writ of certiorari alleging that an order of the trial court which required the state to disclose the identity of a confidential informant departed from the essential requirements of law and should be quashed. We agree.

On January 20, 1982, a confidential informant, equipped with a body bug that relayed his voice but did not make a tape recording, was sent into a bar in St. Peters-burg, Florida, by detectives from the St. Petersburg Police Department. Shortly after entering the bar, the informant related to the detectives that he had observed the respondent dealing in cocaine and that after completing a sale, he put cocaine into his sock. He also described the clothes being worn by the respondent. After conveying this information to the detectives, he left the bar and had no direct knowledge of subsequent events.

Based solely upon the information given by the confidential informant, the respondent was sought out and stopped by the detectives. After a pat-dowr. search revealed cocaine and marijuana in his sock, he was arrested for possession of cocaine and marijuana.

During the course of pre-trial proceedings, the detectives, while giving their depositions, refused to disclose the name and address of the informant, and the respondent then filed a motion to compel disclosure.

At the hearing on the motion, the state presented testimony concerning the event and the reliability of the confidential informant. The state also represented to the court that the confidential informant would not be called upon to testify at any hearing or trial. At the conclusion of the hearing, the trial court granted the respondent’s motion to compel disclosure, and the state filed this petition for writ of certiorari.

Florida Rule of Criminal Procedure 3.220(c)(2), provides as follows:

(2)Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.

In addition to this procedural rule, it appears to be established law that the state is privileged to refuse disclosure of a confidential informant whose information is relied upon to establish probable cause, and the burden is upon the defendant to show he is entitled to an exception. State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970).

Since the state represented to the trial court that the confidential informant would not be called upon to testify at any hearing or trial, the question before us is whether or not the respondent has carried his burden of showing that the failure to disclose the identity of the confidential informant will infringe upon his constitutional rights. At this stage of the proceedings, we hold that the state is not required to disclose the name and address of the confidential informant. It has long been recognized in the federal courts and under the law of Florida that the state is not required to disclose the identity of a confidential informant who merely furnishes the probable cause basis for a search or an arrest. State v. Martinez, 381 So.2d 1183 (Fla. 3d DCA 1980); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh’g denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967); State v. Katz, 295 So.2d 356 (Fla. 4th DCA 1974); State v. Matney.

Unless a defendant can establish that it will be necessary for the prosecution to refer to the informer in the presentation of its case, or that he was an active participant in the offense with which the defendant is charged, or there is no independent evidence of the defendant’s guilt, the state is not required to disclose the name of its confidential informant. Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

Upon remand, if the court is called upon to consider a motion to suppress the evidence obtained as a result of the search of the respondent, the court will have to consider the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Additionally, if the state’s position changes during subsequent proceedings and it attempts to introduce evidence related to the informant’s testimony, or should it occur that the informant must be confronted in order to allow the defendant his sixth amendment right to confront witnesses against him, the respondent may once again seek disclosure.

Certiorari is granted, and the order requiring the disclosure of the identity of the informant is quashed.

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


author: PER CURIAM. WENTWORTH, Judge,

text:
    John RACZ, Appellant, v. CHENNAULT, INC. and R. P. Hewitt and Associates of Florida, Inc., Appellees.
    No. AG-359.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    David W. Miner, Bradenton, for appellant.
    David M. Mitchell of Harkavy, Moxley, Mitchell & Stewart, Sarasota, for appellees.
   PER CURIAM.

This cause is before us on appeal by claimant from a workers’ compensation order awarding certain medical expenses but denying all additional temporary and permanent compensation benefits. Claimant contends that the deputy erred in denying temporary total disability benefits prior to his May 26, 1981 maximum medical improvement date and in denying permanent benefits on grounds the treating psychiatrist’s testimony was not based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment. See Section 440.15(3)(a)(3), Florida Statutes. We agree and reverse.

Claimant Racz is a 57-year-old Hungarian immigrant who was employed as a laborer by appellee Chennault, Inc. Prior to his employment with appellee, Racz held two jobs simultaneously and had no apparent history of anatomical or psychiatric disability. On December 12, 1979, Racz sustained an industrial accident when he slipped while pulling the handle on a steel cutter and felt an immediate and severe lower back pain. When authorized chiropractic treatment failed to relieve Racz’s pain, he was seen by Dr. Padar, an orthopedic surgeon, in February, 1980. Dr. Padar diagnosed moderately severe lumbar sprain but anticipated that Racz would be able to resume employment in four to six weeks with no permanent impairment.

However, Racz’s pain failed to improve; and, on June 4, 1980, he began receiving treatment by a psychiatrist, Dr. Bellino, at a pain treatment clinic. Subsequent objective tests, including an electromyographic examination and a myelogram, were normal. Through a job lead supplied by the employer/carrier, Racz began working at an airport parking lot in November, 1980, taking tickets and inventorying cars. However, after four days, he discontinued this employment because of severe pain in his lower back and left hip, and made no further attempt to resume work through the date of the hearing. Dr. Bellino continued to render psychiatric treatment through August, 1980. By November 25, 1980, Dr. Padar felt that Raca had reached anatomical maximum medical improvement, apparently without any ratable anatomical impairment. On approximately December 1, 1980, the employer/carrier apparently informed Racz that he would be receiving no further compensation or medical treatment.

Between this date and May, 1981, Racz attempted to treat himself by performing various exercises suggested by Dr. Padar and by swimming. However, this therapy was unsuccessful, and Racz again sought psychiatric treatment on May 26, 1981. Following an examination on this date, Dr. Bellino felt that Racz was suffering from a psychogenic pain disorder or hysterical conversion neurosis and would remain 100 percent psychiatrically disabled. Dr. Bellino subsequently testified that this condition was “one hundred percent caused by [the] accident” and that “if he were not injured he would . .. still have been working.” He further stated that, while this diagnosis was largely predicated upon subjective complaints, “I have also seen what I consider to be objective manifestations of this man’s pain [such as] his incapacity to function, his contortions of his body, his holding certain parts of his body, his limp, his dragging sometimes a part of his leg, his use of devices that are known to reduce pain, his sexual dysfunction, reports of his wife about his inability to do anything around the home and so on.” However, Dr. Bellino stated that he was unfamiliar with and did not base his opinion on the AMA Guides.

In an order of August 28, 1981, the deputy found that Racz had reached maximum medical improvement on May 26, 1981, pursuant to Dr. Bellino’s testimony, with no ratable anatomical impairment. The deputy denied temporary total disability benefits to this date on grounds there was no medical evidence of a physical inability to work and no sufficient work search. Citing this court’s opinion in Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981), the deputy further denied all permanent total impairment and wage loss benefits because no ratable anatomical impairment had been assigned pursuant to the AMA tables as required by Section 440.15(3)(a)(3), Florida Statutes.

On appeal, Racz urges that the deputy erred in disregarding unrefuted evidence that he was permanently and totally psychiatrically and functionally impaired, simply because the medical testimony was not based on the AMA Guides. We agree and reverse the denial of all permanent benefits on this ground. Subsequent to the entry of the order below, this court has held that a physician’s failure to apply the AMA tables renders the evaluation incompetent only as to the amount of disability, not to the fact that some permanent disability exists. Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA, 1982). Chapter XIII of the AMA tables sets forth criteria for evaluating permanent impairment due to psychoneuroses, including conversion or hysterical reactions such as Racz’s condition. Guides to the Evaluation of Permanent Impairment at 149 (AMA 1977). Therefore, on remand, the deputy may, within his informed discretion, accept a revised medical report from Dr. Bellino translating his original medical finding into a new rating through the use of the AMA tables. Deinema v. Pierpoint Condominiums, supra.

The deputy also correctly noted in his order that Racz failed to file wage loss forms within the time specified in Section 440.185(10), Florida Statutes. However, we have held that such “untimely filing of wage loss forms does not require a denial of such benefits unless the employer/carrier has been prejudiced because of the untimeliness.” Deinema v. Pierpoint Condominiums, supra, citing Stahl v. Mike Gordon’s Seafood Restaurant, 408 So.2d 808 (Fla. 1st DCA 1982).

The employer/carrier also urges affirmance of the order below on grounds “physical” as opposed to merely “psychiatric” impairment is essential for an award of permanent total disability pursuant to Section 440.15(1)(b), Florida Statutes. However, it is well settled that, where there has been a physical accident and claimant’s disability is increased or prolonged by traumatic neurosis or conversion hysteria, the claimant’s full disability, including the effects of the neurosis, is compensable. See, e.g., City of Winter Park v. Bowen, 388 So.2d 1376, 1377 (Fla. 1st DCA 1977); Lar-sons Workmens Compensation Law § 42.-22. Since the AMA Guides also include criteria for assigning permanent impairment based on psychiatric or mental illness, this contention is without merit.

The deputy also erred in denying temporary total disability benefits between November 25, 1980 and the date of maximum medical improvement on grounds there was insufficient evidence of inability to work or a work search. Dr. Bellino’s uncontroverted testimony was that, “[bjecause of the pain this man experiences, he is unable to do the lightest or minimal kind of work or vocational activity.” Dr. Bellino further stated that, based upon the medical records and his own observations, Racz’s total inability to work had not changed between August, 1980 and August, 1981. See Oriente Express Inn v. Rodriguez, 406 So.2d 55 (Fla. 1st DCA 1981). In light of this medical evidence of claimant’s total inability to work, the deputy’s requirement of a work search as a prerequisite to temporary total disability benefits was erroneous. See Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Sims Crane Service v. King, 400 So.2d 535 (Fla. 1st DCA 1981).

The order below is reversed and remanded for proceedings in accordance with this opinion.

BOOTH and WIGGINTON, JJ., concur.

WENTWORTH, J., specially concurs with written opinion.

WENTWORTH, Judge,

concurring.

I agree with the disposition of the appeal by the majority except on a minor point with respect to the medical evidentiary issue. I think the obligation of this court and the deputy under § 440.15(3)(b)(1), Florida Statutes, is simply to determine “from the record that the claimant’s . . . impairment rating complies with the Guides,” even when the deputy or doctor has “failed to use the magic words ‘based on the A.M.A. Guides.’ ” Spring Air Mattress Co. v. Cox, 413 So.2d 1265 (Fla. 1st DCA 1982). Appellant has properly argued, without rebuttal by appellee, that the medical evidence of total psychiatric disability in this case complies in substance with Chapter XIII of the Guides. I agree, and would conclude that the deputy erred in finding that he lacked authority to apply the Guides in evaluating such testimony simply because the expert did not utilize them.

The remand is accordingly proper for the purpose of permitting the deputy to rule on the claim for permanent disability benefits either on this record or such other evidence as he may find proper.

      . Cf. Rhaney v. Dobbs House, 415 So.2d 1277 (Fla. 1st DCA 1982), recognizing that the statutory prescription is mandatory in requiring use of the schedule in the compensation process but analogizing their function to that of administrative “standards of value to be used by tax assessors;” and stating:
      Although the provisions of § 440.15(3)(a)3 are not unconstitutional per se, they could be unconstitutional in their application if this section were interpreted to mean that there could be no permanent impairment unless a medical doctor testified from the AMA Guides as to certain percentage of permanent impairment set forth therein. However, the section should not be interpreted in that fashion.
      . .. The section under attack does not even require the testimony of a medical doctor using the AMA Guides to establish the existence of some permanent impairment.


text:
    Jimmy Monroe HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. AH-229.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Sept. 10, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jimmy Monroe Harris appeals a judgment finding him guilty of attempted lewd assault upon a child under the age of 14, and sentence of five years imprisonment. Harris first contends that the trial court erred in denying his requested jury instruction on the defense of voluntary intoxication, as lewd assault is a specific intent crime. We disagree. Proof of specific intent is not generally an element of an offense unless specifically required by statutory language. E.g., Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979); State v. Shorette, 404 So.2d 816 (Fla. 2d DCA 1981). The applicable language in Section 800.04, Florida Statutes, defining lewd assault, does not include the word “intentionally” or any other specific reference to the perpetrator’s intent. Absent such language, it is well settled that the requisite intent may be inferred from the doing of the act constituting the offense. See, Askew v. State, 118 So.2d 219 (Fla.1960). Therefore, since lewd assault on a child under the age of 14 is not a specific intent crime, the trial court properly denied the requested jury instruction on voluntary intoxication. Harris’s conviction is affirmed.

Harris correctly asserts, however, that the uniform judgment form must be corrected to reflect that he was convicted of attempted lewd assault rather than lewd assault as charged. Accordingly, we remand for correction of the judgment form to reflect a conviction for attempted lewd assault.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.

      . Section 800.04, Florida Statutes, provides as follows:
      Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner. or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (emphasis added)
      The underscored language is applicable to the facts of this case.


text:
    Neomi LETCAVAGE, Appellant, v. JOHN BIGGIE & CO., and Employers Insurance Company of Wausau, Appellees.
    No. AJ-305.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    David L. Kahn, of Kahn & Gustafson, Fort Lauderdale, for appellant.
    Thomas W. Conroy, of Conroy & Sim-berg, P. A., Hollywood, for appellees.
   SHIVERS, Judge.

Appellant seeks review of a workers’ compensation order denying her benefits. Letcavage asserts the deputy commissioner erred in applying Section 440.15(10)(a) retroactively and erred in denying her minimum $20 weekly payments pursuant to Section 440.12. We modify the order below and affirm as modified.

Section 440.15(10)(a) provides for an employer offset for the amount of Social Security benefits received by the employee. In 1979, the statute was amended to include in the offset the amount of Social Security benefits paid for the employee’s dependents. We have previously held the statute applies retroactively to accidents occurring prior to the new statute’s effective date. Modern Plating Co. v. Whitton, 394 So.2d 515 (Fla. 1st DCA 1981). Accordingly, the portion of the order dealing with offset is affirmed. The deputy commissioner, however, erred in failing to grant minimum weekly $20 payments as provided for in Section 440.12(2). Department of Transportation v. Davis, 416 So.2d 1132 (Fla. 1st DCA 1981).

The order below is, therefore, modified to award Letcavage the twenty dollar per week payments. The order as modified is

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


author: THOMPSON, Judge.

text:
    BILL BARD ASSOCIATES, INC., and Continental Insurance Company, Appellants, v. John TOTTEN, Appellee.
    No. AI-262.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    David C. Chafin, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   THOMPSON, Judge.

This is an appeal from a compensation order awarding permanent partial disability (PPD) benefits based on a loss of wage earning capacity in excess of claimant’s anatomic impairment rating. We reverse.

The claimant is a highly successful salesman whose work in the hotel promotion .field involved extensive travel. He sustained a compensable back injury on March 5, 1979, when he fell while alighting from a jetliner at the Atlanta Airport. After receiving treatment at an Atlanta hospital, claimant returned to Florida and sought treatment from Dr. Farrar. Dr. Farrar hospitalized claimant for a ten-day course of conservative care, after which claimant returned to work with the employer. Because his back problems persisted, the claimant obtained additional treatment from Drs. Carducci, Stanford, and Brunson. These doctors were in substantial agreement that claimant’s injury had aggravated his pre-existing degenerative disc disease, and that he had a permanent impairment of 15% of the body as a whole, with only zero to two per cent being attributable to the industrial accident. Dr. Stanford recommended that claimant avoid heavy lifting, repetitive bending, stair climbing, and working from ladders or scaffolds. Dr. Stanford testified that prolonged sitting would increase claimant’s discomfort, and that claimant would need to take a ten-minute rest period every two hours.

The claimant testified that although he had been able to return to work with the employer, and in fact had received a $5,000 raise after his return to work, he had been forced to quit his position with the employer in September 1980 because the extensive travel requirements of the job were aggravating his back condition. Upon resigning his position, the claimant immediately went to work with Martin-Marietta Data Systems, at a salary of $43,000 per year. The claimant testified that while the Martin-Marietta job did not involve as much travel as his position with the employer, it did require prolonged sitting and more frequent attendance at trade shows. Because the claimant’s back condition made these activities difficult, he resigned the position with Martin-Marietta in April 1981. At the time of the hearing, the claimant and two former associates were working to develop a computerized energy management systems business.

In his order, the deputy found that the impairment ratings assigned by the physicians were too low, and that claimant’s “more realistic” anatomic impairment rating was 25% of the body as a whole. The deputy further found that while claimant had returned to his usual occupation after the accident, and was able at the time of the hearing to continue to work at his usual occupation, the nature of claimant’s injuries and limitations would render him incapable of performing his usual duties after a period of two to three years. Based on this prediction, the deputy awarded PPD benefits based on a 51% loss of wage earning capacity.

This award was erroneous. While an award of PPD benefits based on loss of wage earning capacity necessarily involves a prediction as to claimant’s future ability to earn, such prediction must be based on the facts which exist at the time the award is made. Bell v. Southern Bell Telephone Company, 152 So.2d 473 (Fla.1963). Here, the claimant was able to continue to work for the employer after the accident, and actually received a significant salary increase despite his injured condition. The claimant then obtained another sales position with a different employer, and an even more substantial salary increase. The evidence showed that at the time the award was made, the claimant was capable of working at his usual occupation, and of earning a salary comparable to or greater than his pre-accident wage, and the deputy expressly so found in his order. There was no evidence that claimant’s back problem is progressive in nature or that his condition would worsen in the future, and, indeed, one doctor affirmatively testified that in his opinion claimant’s condition would not deteriorate. A deputy commissioner is not at liberty to speculate that a claimant who is capable of working at his usual occupation and whose injuries have stabilized will at some future time be unable to work. Walter Boller Farms v. Stevens, IRC Order 2-3883 (Aug. 10, 1979). If the deputy’s prediction proves correct, the claimant may seek relief pursuant to the provisions of § 440.28, Fla.Stat. The order appealed from is reversed, except insofar as it requires the employer/carrier to continue to furnish such palliative medical care as is necessitated by claimant’s industrial injury.

REVERSED.

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


text:
    RICH INTERNATIONAL AIRWAYS, INC., and Hartford Insurance Company, Appellants, v. Luis CAHVASQUIS, Appellee.
    No. AK-295.
    District Court of Appeal of Florida, First District.
    Aug. 20, 1982.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellants.
    Mark J. Feldman, Miami, for appellee.
   PER CURIAM.

Affirmed, Fla.App. 416 So.2d 902. Ap-pellee granted $1,000 attorney’s fees.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Wayne Joseph NORTHRUP, Appellant, v. STATE of Florida, Appellee.
    No. 81-2325.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1982.
    Jerry Hill, Public Defender, and L. S. Alperstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal from a conviction for the crimes of burglary, grand theft, and possession of burglary tools, we find no error in the trial judge’s denial of the defendant’s motion to suppress.

However, as the state concedes, the sentence must be corrected to eliminate the requirement that the defendant pay $100 in court costs and contribute $10 to the crime victim fund. Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981); § 939.15, Fla.Stat. (1981).

Accordingly, we AFFIRM the conviction but REMAND with instructions that the sentence be corrected to delete the requirement that the defendant pay court costs and contribute to the crime victim fund.

DANAHY, A. C. J., SCHOONOVER, J., and CURTIS, CLINTON A., Associate Judge, concur.


text:
    Richard C. WALLEN, Appellant, v. SALON OF MUSIC, INC., and Shelby Mutual Insurance Company, Appellees.
    No. AG-256.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    • Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Harry D. Robinson, West Palm Beach, for appellees.
   McCORD, Judge.

Appellant appeals a workers’ compensation order ruling that his heart attack is not compensable. We reverse.

In September 1979, appellant injured his back and hip in a work-related accident. About eight months later, while he was still temporarily totally disabled from that accident, he suffered a heart attack. The deputy commissioner based his finding that the heart attack was noncompensable on the deposition testimony of Dr. Gerard and the testimony of Dr. Ray, both of whom are internists and cardiologists. Both doctors testified in essence that, although appellant had pre-existing atherosclerosis, within a reasonable degree of medical certainty the increased anxiety which appellant suffered as a result of the accident could have contributed to the onset of his heart attack. In denying the claim the deputy commissioner stated:

I accept the opinion of Dr. Gerard and of Dr. Ray that the additional stress from the compensable accident could have contributed to the myocardial infarction suffered by the claimant, but I do not feel there is competent substantial evidence to indicate that this probable additional stress did in fact contribute to the myocardial infarction suffered by the claimant.

We find that the deputy commissioner placed too great a burden of proof as to causation upon appellant.

In Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973), the Industrial Relations Commission had found that the causal relationship between an accident and the claimant’s heart attack was not established by competent substantial evidence because the doctor in that case “did not unequivoca-bly testify that within a reasonable medical probability that either of the accidents caused the myocardial infarction.” The Commission went on to say that “[T]he only evidence in support of the Judge of Industrial Claims’ ruling in the instant case was that of Dr. Armstrong who merely attributed claimant’s myocardial infarction to both his prior accidents and named other causative factors.” Dr. Armstrong’s testimony was in part as follows:

I feel that there is absolute medical certainty that this triggered the acute phase of his respiratory disease as it is a well-known fact that the wheezing associated with obstructive pulmonary disease is frequently emotionally induced. It is equally well known that heart attacks are stress related. .. .

The doctor went on to testify that he felt there was a connection between the accidents and the claimant’s heart attack; that the stress the claimant had suffered in his accidents triggered wheezing responses that “tipped him over into having overt manifestations of the obstructive disease.” The Supreme Court reversed the Commission’s ruling, stating:

We have recited the testimony and report of Dr. Armstrong on this issue and it is our opinion that this evidence, coupled with the testimony of claimant and his wife to the effect that claimant became increasingly nervous and began to suffer shortness of breath after the second accident, constitute competent substantial evidence of causal relationship ....

As in Reynolds, the instant case contains competent, substantial evidence, based on the testimony of Drs. Gerard and Ray, to support a finding that the heart attack was compensable. Compare also Vyajkora v. Farm Stores, 378 So.2d 889 (Fla. 1st DCA 1979), in which this Court stated:

Concededly, the accident did not cause the dry eye syndrome, nor was there any way to know if the accident precipitated the injury or whether the accident and injury were coincidental .. . However, a pre-existing condition which becomes symptomatic as the probable result of an accident is compensable. (Emphasis supplied.)

In light of the above cases and because the deputy commissioner specifically accepted the opinions of Drs. Gerard and Ray on the heart attack compensability question, we hold that appellant has met his burden of proof to show that his heart attack should be deemed compensable.

Reversed and remanded for further proceedings consistent with this opinion.

ERVIN and JOANOS, JJ., concur.


text:
    John Baugh BELL, Appellant, v. Vivien Joy TUFFNELL, Appellee.
    No. AI-49.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    Ralph D. Golden, Memphis, Tenn., for appellant.
    Michael T. Webster of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellee.
   McCORD, Judge.

Appellant, a resident of Tennessee, appeals the trial court’s denial of his motion to dismiss, contending that the trial court does not have jurisdiction over him in this paternity action pursuant to the Florida Long Arm Statute. We affirm.

Appellee brought this paternity action seeking support for her child and alleging that appellant is the father of the child. Appellee and the child are residents of Florida. Appellant has never been a Florida resident, but the complaint alleges that the act of siring the child occurred in Florida.

The applicable portion of the Florida Long Arm Statute, Section 48.193(1)(b), provides as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any causé of action arising from the doing of any of the following:
* * * * * *
(b) commits a tortious act within this state.

Appellant contends that to find that section applicable to him, the court must rule that the act of sexual intercourse between consenting adults is a commission of a tortious act. Appellant points out that some states have declined to extend similar Long Arm statutes to reach nonresident defendants in paternity suits, holding that sexual intercourse between consenting adults is not a tortious act. State ex rel. Larimore v. Snyder, 206 Neb. 64, 291 N.W.2d 241 (1980); A. R. B. v. G. L. P., 180 Colo. 439, 507 P.2d 468 (1973). In those cases, the courts declared that the duty to support an alleged child is only an ancillary issue in a paternity action. To the contrary, however, other jurisdictions have held that in a paternity case, the alleged failure by a putative father to fulfill the duty of support is alone sufficient to constitute a tortious act within the meaning of their Long Arm statutes, which are similar to the one in question. See Poindexter v. Willis, 87 Ill.App.2d 213, 231 N.E.2d 1 (1967); Gentry v. Davis, 512 S.W.2d 4 (Tenn.1974); Nelson v. Nelson, 298 Minn. 438, 216 N.W.2d 140 (1974). We agree with the latter decisions and find that Section 48.193(1)(b), Florida Statutes, brings appellant within the jurisdiction of the trial court in this action.

Appellant argues that liability for support is not the primary issue in a paternity suit but is merely the second step in a paternity determination. However, in Estanislao v. State, Dept. of HRS, 368 So.2d 677 (Fla. 1st DCA 1979), this Court rejected the similar contention of that appellant. We ruled that the suit was one to establish both paternity and support and is an “independent action for support of dependents” within the meaning of Section 48.193(1)(e), Fldrida Statutes.

AFFIRMED.

ERVIN and JOANOS, JJ., concur.


author: JOANOS, Judge.

text:
    J. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-397.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal from an order of commitment to the Department of Health and Rehabilitative Services following adjudication of delinquency, J. B. contends the court erred in committing him without the benefit of a written predisposition report, without allowing him an adequate opportunity to rebut or explain factual information contained in the oral report, and without disclosing the contents of the report to appellant and his parents.

Appellant’s counsel was in attendance when an oral predisposition report was presented by the HRS counselor in the judge’s chambers. Apparently, although the record is not completely satisfactory in this regard, the disposition hearing took place immediately thereafter. Appellant’s counsel objected to proceeding in this fashion because appellant and his parents were provided no opportunity to confront the information, revealed in the oral report, which counsel asserted was extremely damaging. In response to this objection, the court requested that the HRS counselor give the oral report again, in the courtroom, but defense counsel objected to that procedure because other people were present in the courtroom. The court responded that counsel could not have it both ways, to which another objection was lodged. The judge then recited the information in the report on which he intended to rely, asked for the recommendation of the state attorney, and proceeded to dispose of the case without pausing to inquire whether appellant or his parents cared to comment on the information.

Appellant directs our attention to Fla.R.Juv.P. 8.200 and subsections 39.-09(3)(a), (c), and (j), Florida Statutes (1981), arguing that meaningful compliance with these provisions requires preparation of a written predisposition report made available to the juvenile, his parents, and counsel a reasonable time prior to disposition hearing. While the purpose of the Juvenile Justice Act would best be served by submission of a written predisposition report prior to the disposition hearing, R. S. v. State, 414 So.2d 660 (Fla. 1st DCA 1982), we decline to insert an absolute requirement that the report be in writing into the statute and rule at this time. In this particular case, however, at minimum, the information in the oral predisposition report should have been disclosed to appellant and his parents a reasonable time prior to the disposition hearing so that they would have a meaningful opportunity to confront the information contained in the report. See Fla.R.Juv.P. 8.200(b). See also S. C. H. v. State, 404 So.2d 811 (Fla. 1st DCA 1981); C. G. H. v. State, 404 So.2d 400 (Fla. 5th DCA 1981); R. V. P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981).

The order of commitment is VACATED and the case is REMANDED for proceedings consistent with this opinion.

McCORD and ERVIN, JJ., concur.


text:
    Charles Hugh BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. AL-160.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    Norman J. Abood, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   McCORD, Judge.

This is a petition for writ of common law certiorari seeking review of two orders of the trial court entered after remand of this case pursuant to our opinion in Brown v. State, 392 So.2d 280 (Fla. 1st DCA 1980). The first of these orders, entitled “Judgment on Pending Motions,” denies petitioner’s motion to withdraw his pleas of nolo contendere; denies petitioner’s motion to suppress the evidence seized pursuant to the search warrant which forms the basis for Counts I and II of the amended information; grants the motion to suppress the evidence seized upon search of the individuals’ persons and immediate area; and rules that petitioner’s motion to comply with the mandate of this Court is moot in the light of the court’s foregoing rulings and rules that petitioner should commence serving his sentence. The second of these orders, entered subsequent to our aforesaid opinion, is an order denying petitioner’s motion for discharge under Florida Rule of Criminal Procedure 3.191, the speedy trial rule. We deny certiorari.

This case has followed a long and tedious route subsequent to the judgment and sentence of appellant by the trial court on November 4, 1975. That history to the point of our remand to the trial court is related in our aforesaid opinion in Brown v. State, supra, and we therefore will not repeat it here. Following that opinion, the State sought certiorari in the United States Supreme Court and certiorari was denied. Thereafter, upon remand, the trial court entered the judgment on pending motions and the order denying discharge. Petitioner then filed with this Court a motion to enforce mandate asking that we direct the trial court to treat the judgment and sentence as being reversed and to order the trial court to discharge petitioner under Florida Rule of Criminal Procedure 3.191(g) on the ground that the petitioner had not been brought to trial within 90 days from receipt by the trial court of this Court’s mandate. Petitioner in addition filed a petition for writ of prohibition seeking an order of discharge under the aforesaid rule. We denied both the petition for writ of prohibition and the motion to enforce mandate.

By the current petition for writ of certio-rari, petitioner seeks the same relief which he sought on his previous motion to enforce mandate and petition for writ of prohibition. All of these proceedings subsequent to our remand of this case have stemmed from conflicting views of petitioner on the one hand and the State and trial court on the other as to the meaning of our opinion in which we reversed and remanded the case to the trial court “with directions to grant the motion to suppress insofar as it seeks suppression of the evidence seized upon the arrest of appellant and the other individuals and to deny the motion in other respects.” Appellant construes this as a reversal of the judgment and sentence for a new trial. The trial court construed it only as stated in the above quotation from the opinion. Inasmuch as the items supporting petitioner’s convictions on Counts I and II were the items seized upon execution of the warrant to search his home, the trial court in its order directed that petitioner begin serving his sentence. Those items seized in petitioner’s home included 180 pounds of marijuana, marijuana plants, marijuana pipes, marked money paid for the purchase of marijuana found in a wallet in the bedroom of the house, two sets of scales, and marijuana found in a tin container on the kitchen table.

The trial court correctly construed our opinion and mandate. We did not vacate and did not direct that the trial court vacate the judgment and sentence and grant a new trial. We reversed and remanded “for further proceedings consistent with our opinion.” Although the appeal necessarily came to us from a judgment of conviction, we reversed only the denial of the motion to suppress as to items seized upon the search of the individuals’ persons and the immediate area made at the time of the arrests. It so happened, as the trial court upon remand recognized, that the evidence supporting the conviction and which formed the basis for petitioner’s nolo contendere plea was not reversed. The trial court did not depart from the essential requirements of law. The further proceedings in the trial court following our opinion was consistent with our directions.

Petitioner further contends that the United States Supreme Court’s order, Brown v. Florida, 446 U.S. 902, 100 S.Ct. 1826, 64 L.Ed.2d 254, (referred to in Brown v. State, supra) vacated the judgment and sentence of the trial court. Such contention is incorrect — it only vacated the judgment of this Court and remanded the case to us for further consideration in light of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The order and mandate of the United States Supreme Court filed with this Court specifically states: “[I]t is ordered and adjudged by this Court that the judgment of the District Court of Appeal of Florida, First District, in this cause is vacated, and that this cause is remanded to the District Court of Appeal of Florida, First District for further consideration . . . . ”

Certiorari denied.

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

      . Petitioner was charged in Count I of the amended information with possession of more than five grams of marijuana with intent to sell and in Count II with possession of a device, contrivance, instrument or paraphernalia, to-wit: a pipe, with intent that said device be used for unlawfully administering marijuana.


text:
    E. C. GOLDMAN ROOFING and Risk Management Services, Inc., Appellants, v. James H. ROGERS, Appellee.
    No. AF-467.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.

      C. E. Miller of Miller & Cooper, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   ON MOTION FOR REHEARING

JOANOS, Judge.

Having considered the appellee’s motion for rehearing, we grant the motion and withdraw the decision and opinion filed June 11, 1982, substituting the following decision and opinion in lieu thereof.

This is an appeal from the deputy commissioner’s order awarding claimant wage loss benefits from January 1, 1981, through May 31, 1981, and an attorney’s fee. We affirm the award of wage loss benefits. Appellants contend that the rating assigned claimant by Dr. Webb is not a sufficient basis for the award of wage loss benefits because the rating was not based on the American Medical Association Guides to Evaluation of Permanent Impairment. This contention was not raised before the deputy commissioner, thus any error was not preserved for this court’s review. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

The deputy erred in awarding claimant an attorney’s fee. None of the statutory criteria for an award of fees is present in this case. Appellee contends the fee was properly awarded under either Section 440.-34(2)(b) or Section 440.34(2)(c). Section 440.34(2)(b) is clearly inapplicable since the order contains no findings of bad faith; in fact bad faith is not mentioned at all in the order. Neither does Section 440.34(2)(c) apply, under the circumstances of this case, in which TTD benefits were paid from November 14, 1980, up to the date of MMI. “[W]hen an employer/carrier admits an accident and pays some disability benefits but denies others are due, an attorney’s fee is not awardable under Section 440.34(2)(c) Florida Statutes (1979).” Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981), Walt Disney World Co. v. May, 397 So.2d 1003 (Fla. 1st DCA 1981), Ardmore Farms v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981). Appellee cites Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981) in support of its argument, but Ellison involved a special situation which distinguishes it from the present case. See City of Miami v. Wright, 414 So.2d 24 (Fla. 1st DCA 1982).

The award of wage loss benefits is AFFIRMED. The award of an attorney’s fee is REVERSED.

THOMPSON and WIGGINTON, JJ., concur.


author: NESBITT, Judge.

text:
    Gilbert A. DI TEODORO and Patricia A. Di Teodoro, his wife, Appellants, v. LAZY DOLPHIN DEVELOPMENT COMPANY d/b/a Jack's Bar and Package Store, Appellee.
    No. 81-358.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Thomas & Thomas and Frank Thomas, Orlando, for appellants.
    David Wm. Boone, Fertig & Curtis, Christopher R. Fertig, Fort Lauderdale, for ap-pellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The plaintiffs appeal from the denial of their motion for new trial after an adverse verdict and judgment was entered against them in a personal injury action. The only point with which we are concerned is whether the trial court erred in denying the plaintiffs the right to amend their pleadings to conform to the evidence.

The plaintiffs’ initial complaint was predicated upon the negligent maintenance of the defendant bar and package store. At trial, this issue developed narrowly to whether the handrail on the stairway was negligently maintained, thereby causing Gilbert Di Teodoro’s fall. During the plaintiffs’ case, testimony was elicited from one Gary Burns to the effect that the bartender pushed him (Gary) into Gilbert, causing the plaintiff to fall down the stairs. This testimony was introduced without any objection being interposed by defense counsel. Moreover, defense counsel cross-examined this witness on this intentional tort by the bartender. After all of the evidence was presented by plaintiffs, counsel for the plaintiffs moved to conform the pleadings to the evidence adduced at trial. The motion was denied and the trial judge refused to instruct the jury on this issue. We reverse.

Florida Rule of Civil Procedure 1.190(b) provides, in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues.

In the present case, we find that the issue of the bartender’s intentional tort was tried by implied consent. It is basic in trial practice that an opposing party must object and obtain a ruling on the admission of evidence or else that objection is waived. McMillan v. Reese, 61 Fla. 360, 55 So. 388 (1911). We reject the appellee’s contention, relying upon Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968), that the evidence was consistent with the negligent maintenance theory stated in the complaint, so as to prevent the defendant from realizing that a new issue was being tried. It can hardly be said that proof that the bartender pushed Gary into Gilbert, causing the plaintiff to fall, is consistent with proof of the defendant’s negligence in failing to maintain a handrail. Therefore, we find that the defendant’s failure to object to the introduction of such testimony at the time it was offered precludes it from now claiming error in its admission.

Nonetheless, the defendant contends that the intentional tort constitutes a new cause of action, barred by the statute of limitations, which cannot relate back to the time when the original cause of action was filed. When an issue is tried by implied consent, that issue can be treated in all respects as if it had been raised in the pleadings. Fla.R.Civ.P. 1.190(b); Free Bond, Inc. v. Comaza International, Inc., 281 So.2d 61 (Fla. 3d DCA 1973); Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853 (Fla. 4th DCA 1972); Robbins v. Grace, 103 So.2d 658 (Fla. 2d DCA 1958). Thus, the issues tried by implied consent are protected from a statute of limitations defense, without the aid of relation back under Florida Rule of Civil Procedure 1.190(c). See 6 Wright & Miller, Federal Practice and Procedure § 1496 (1971). (stating this rule with respect to Federal Rule of Civil Procedure 15(b), the counterpart to Florida Rule of Civil Procedure 1.190(b)).

While as a result of the implied consent, it became unnecessary for the plaintiffs to have even made a motion to amend the pleadings to conform to the evidence, Fla.R. Civ.P. 1.190(b); Free Bond, Inc., supra; Beefy Trail, Inc., supra; Robbins, supra, having done so, said motion should have been granted by the trial judge, and the jury should have been instructed on this issue.

Accordingly, we reverse and remand for a new trial.

      . Plaintiffs also argue that leave to amend prior to trial should have been granted to allege the defendant’s liability for serving a person under the influence of alcohol. No cause of action exists in favor of an injured party under these circumstances. Lonestar Florida, Inc. v. Cooper, 408 So.2d 758 (Fla. 4th DCA 1982). Consequently, we need not consider the plaintiffs’ claimed error in not allowing this amendment. See Midstate Hauling Co. v. Watson, 172 So.2d 262, 266 (Fla. 2d DCA 1965).

      . Conversely, where an objection is made to the introduction of the evidence, the relation back provisions become applicable to determine if the statute of limitations presents a bar to the trial upon those issues. See 6 Wright & Miller, Federal Practice and Procedure § 1496 (1971).


text:
    Ronnie JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-668.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Bennett H. Brummer, Public Defender, and Eugene F. Zenobi, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We find no error in the admission of evidence of a subsequent collateral crime, where it occurred so close in time to the robbery for which the defendant was charged, as to establish the entire context out of which the criminal conduct arose. Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Nonetheless, we reverse the defendant’s conviction of robbery because the defense was denied the opportunity to lay the proper predicate for impeachment by prior inconsistent statement. § 90.608(1)(a), Fla. Stat. (1979); Henderson v. State, 155 Fla. 487, 20 So.2d 649, 651 (Fla.1945); Garcia v. State, 351 So.2d 1098 (Fla. 3d DCA 1977), cert. denied, 361 So.2d 835 (Fla.1978).

Reversed and remanded for a new trial.


text:
    Maria REALIN and Jose Realin, her husband, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. 81-1021.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Robert A. Glassman, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon Derrevere, Miami, for ap-pellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

A recurring question is whether the insured made a knowing rejection of the higher uninsured motorist benefits afforded by the policy issued, as is required by Section 627.727(1), Florida Statutes (1975). The trial court found, in this case, that he did and granted final summary judgment in favor of the defendant, State Farm Fire and Casualty Company (State Farm). We disagree and reverse.

The insured, Jose Realin, has difficulty communicating in the English language. He purchased a tow truck in December of 1975, after which he applied for and obtained from State Farm an automobile insurance policy containing bodily injury liability limits of $50,000/$100,000 and uninsured motorist coverage of $15,000/$30,000. Section 627.727(1), supra, mandates that uninsured motorist coverage limits be no less than bodily injury liability limits, unless, and to the extent that, the higher uninsured motorist limits are rejected by the insured. When Realin’s policy was issued, no attempt was made to have him reject the higher uninsured motorist coverage. However, four days later, he received a “rejection form” in the mail, which he signed and returned by mail to State Farm.

Realm's policy automatically renewed at six-month intervals on the identical terms and with the same premiums as in the original policy. After the first renewal, Realm’s wife received serious injuries as the result of an automobile collision with an underinsured tortfeasor. The Realins then sought a judgment declaring that the uninsured motorist limits in their policy were equal to the bodily injury liability limits.

It is apodictic that any rejection by the insured of the higher uninsured motorist limits must be a knowing one. Travelers Insurance Company v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981); United States Fidelity and Guaranty Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976), cert. dismissed, 353 So.2d 680 (Fla.1977). State Farm argues, citing Alejano v. Hartford Accident and Indemnity Company, 378 So.2d 104 (Fla. 3d DCA 1979) and Lopez v. Midwest Mutual Insurance Company, 223 So.2d 550 (Fla. 3d DCA 1969), that Realin’s signature on the mailed form means that he is bound by its contents despite his apparent inability to understand them.

The so-called “rejection form” offered Realin two options — either reject uninsured motorist coverage completely, or elect the lower limits of liability stated in the policy. A check mark was placed in the box next to the option to elect lower limits. Obviously, the form did not inform Realm of the availability of the higher uninsured motorist limits, nor did it offer such limits to him. Furthermore, there was no evidence in the record or testimony from State Farm agents that Realin was at any time informed that he could obtain uninsured motorist coverage in an amount at least equal to the limits of the bodily injury liability.

Although an insurer has no duty to explain uninsured motorist coverage to an insurance applicant unless asked, General Insurance Company of Florida v. Sutton, 396 So.2d 855 (Fla. 3d DCA 1981); Alejano v. Hartford Accident and Indemnity Company, supra, there is a duty to inform the applicant of the availability of the higher limits and to offer those limits to him. Spaulding v. American Fire & Indemnity Company, 412 So.2d 367 (Fla. 4th DCA 1982); General Accident Fire & Life Insurance Corporation v. MacKenzie, 410 So.2d 558 (Fla. 4th DCA 1982); Lustig v. Colonial Penn Insurance Company, 406 So.2d 543 (Fla. 4th DCA 1981); Travelers Insurance Company v. Spencer, supra; General Insurance Company of Florida v. Sutton, supra. “There can be no informed rejection in the absence of an informing offer.” Spaulding v. American Fire & Indemnity Company, 412 So.2d at 371; Lustig v. Colonial Penn Insurance Company, 406 So.2d at 544. State Farm failed to present any evidence of an informing offer. Therefore, its motion for summary judgment should not have been granted.

For the foregoing reasons, the final summary judgment is reversed and the cause is remanded for further proceedings.

      . Consequently, we are not involved with a significant change requiring a new rejection such as that in Hartford Accident and Indemnity Company v. Sheffield, 375 So.2d 598 (Fla. 3d DCA 1979).

      . It is not clear whether the mark was placed there by Realin or by someone at State Farm before the form was mailed out.


text:
    Robert Lee ALEXANDER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1094.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.

      Bennett H. Brummer, Public Defender, and Gerald D. Hubbart and Thomas S. Wilson, Jr., Sp. Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant was charged by information with: (1) robbery; (2) unlawful possession of a firearm while engaged in the commission of a criminal offense (robbery); (3) obstruction of justice; and (4) petit theft. He was convicted on all counts and sentenced to life imprisonment on the robbery charge, fifteen years for possession of a firearm, and sixty days each as to the two remaining charges. The sentences were to run concurrently.

The defendant’s first point on appeal is that the evidence was insufficient to support his conviction for the obstruction of justice. Specially, Alexander was charged with the violation of Section 21-26(A)(3)(a), Code of Metropolitan Dade County, which provides, in pertinent part:

(3) It shall be unlawful for any person to knowingly obstruct justice. A person obstructs justice when, with intent to prohibit the apprehension or obstruct the prosecution or defense of any person, the person knowingly commits any of the following actions:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, or furnishes false information; or

Pursuant to Section 125.69, Florida Statutes (1979), violation of an ordinance is prosecuted as a misdemeanor.

In the light most favorable to the state, the evidence demonstrates that the defendant entered the victim’s shop and, at gunpoint, took $190 in cash and the victim’s wallet containing his credit cards. The next day, a police officer stopped the defendant to question him about the robbery. At that time, the defendant stated that his name was Anthony Lee Alexander. The officer later discovered that the defendant’s real name was Robert Lee Alexander.

The defendant points to Leland v. State, 386 So.2d 622 (Fla.3d DCA 1980) where we held that the giving of a false name to a police officer, standing alone, does not constitute a violation of Section 843.03, Florida Statutes (1979). The state correctly distinguishes the prosecution under the present statute from that in Leland v. State, supra. Section 843.03, supra, punishes one who disguises himself with intent to obstruct justice. Based on that provision, the court, in Leland, supra, quite properly found that furnishing a false name was not disguising oneself. Under the ordinance relevant here, however, there is no requirement of a disguise. One need only furnish false information to violate the ordinance. Consequently, we find that the evidence adduced at trial clearly supports the defendant’s conviction for the obstruction of justice.

The defendant next argues that he cannot be convicted of petit theft since that crime is a lesser included offense of robbery. We agree with the defendant’s contention that petit theft is a lesser included offense of robbery. See Bruns v. State, 408 So.2d 228 (Fla. 4th DCA 1982); Hammer v. State, 343 So.2d 856, 858 (Fla. 1st DCA 1976), cert. denied, 352 So.2d 175 (Fla.1977). However, in the wake of State v. Hegstrom, 401 So.2d 1343 (Fla.1981) and State v. Monroe, 406 So.2d 1115 (Fla.1981), the conviction of the lesser included offense is proper; but sentencing for the lesser offense is not permitted. Because the defendant has already served his sentence for petit theft, this issue has now become moot.

Finally, on our own initiative, we address the fundamental error which we find in defendant’s sentence for possession of a firearm while engaged in the commission of a criminal offense. In accordance with the recent decisions in Hegstrom, supra, and Monroe, supra, the defendant, having been sentenced for robbery, may not be sentenced for the lesser included offense of possession of a firearm while engaged in a criminal offense. Accordingly, we vacate the defendant’s sentence as -to that count.

As modified, defendant’s conviction and sentences are affirmed.

      . See Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980), pet. for review denied, 402 So.2d 613 (Fla.1981); Kohn v. State, 289 So.2d 48 (Fla. 3d DCA 1974); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973).


text:
    ERO PROPERTIES, INC., a New York corporation, Peter Grzybala and Mark Feuster, Appellants, v. Jay CONE, Eilene Barocas, Gloria Smith and Nancy Greene, Appellees.
    No. 81-1291.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.

      William E. Shockett, Miami Beach, for appellants.
    Cohen, Angel & Rogovin and Terrence S. Schwartz, Miami, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

The declarations of condominium, articles of incorporation, and by-laws of the Costa del Sol Condominium Association all provided that the developers would relinquish control over the association to the unit owners no later than January 1, 1980. The declarations of condominium were amendable only upon a two-thirds vote of the condominium unit owners. However, the articles of incorporation and by-laws could be amended by a majority vote of the board of directors of the association. While still under the control of the developers, the board of directors amended the articles of incorporation and the by-laws to extend developer control by adopting the provisions of Section 711.66, Florida Statutes (Supp.1974) (effective October 1, 1974) (renumbered Section 718.301, Florida Statutes (1981)). The unit owners brought a class action seeking enforcement of the January 1, 1980 takeover provisions. The trial court granted them declaratory and injunctive relief to that effect and the defendant developer appealed.

We affirm the judgment below on the dual basis that: (a) the relinquishment-of-control provisions in the declarations of condominium filed for record in June, 1974 take precedence over the amended provision in the by-laws, § 718.112(3)(c), Fla.Stat. (1979); and (b) the acquiring purchasers of the individual units had a right to rely upon the takeover provisions in the recorded declarations of condominium and original articles of incorporation and by-laws which were appended to the developer’s offering prospectus, see Blaeser Development Corporation v. Cove Cay Condominiums Association, 412 So.2d 889 (Fla. 2d DCA 1982), notwithstanding the contrary statutory provisions which came into effect after the filing of the declarations. See Tradewinds of Pompano Association v. Rosenthal, 407 So .2d 976 (Fla. 4th DCA 1982).

Affirmed.


text:
    Lawrence C. MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1321.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.

      Bennett H. Brummer, Public Defender and Myron M. Gold, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Defendant was convicted of burglary, sexual battery, robbery (three counts), aggravated battery, unlawful possession of a firearm while engaged in a criminal offense, and dealing in stolen property (six counts). No reversible error is demonstrated by this appeal.

The evidence, by its weight and legal sufficiency, supports the jury verdict of guilty beyond a reasonable doubt. Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff’d, 454 U.S. 963, 102 S.Ct. 502, 70 L.Ed.2d 378 (U.S.1982); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981).

A police witness’s inadvertent statement while testifying that “I got the picture from the files” in response to the prosecutor’s inquiry as to how a photographic line-up was assembled did not require a mistrial. The prosecutor was obviously seeking to establish, as shown by succeeding questions, that the line-up was non-suggestive. The fact that a photograph, cropped of its customary “mug shot” markings, is in police files does not necessarily convey to a jury that a defendant has committed prior crimes or has previously been in trouble with the police; a jury instruction to that effect, if requested and given, would have cured the error. See Loftin v. State, 273 So.2d 70 (Fla.1973); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977).

Appellant further contends here that the prosecutor’s reading of the defendant’s home address to the jury from an arrest affidavit not in evidence, for the purpose of destroying an alibi defense by showing that the defendant lived and was near the scene when the crime was committed, constituted improper rebuttal. We find it was not harmful error, and even if it had been, an objection grounded solely on relevancy was insufficient to preserve the issue for review. The testimony was quite relevant. A proper objection to the testimony would have been that it was hearsay. Rolle v. State, 416 So.2d 51 (Fla. 4th DCA 1982). If a proper objection is not interposed at the time the evidence is presented, the appellant will be deemed to have waived his objection. United States v. Fox, 613 F.2d 99 (5th Cir. 1980) (claim of error in not establishing proper foundation to rely on coconspirator objection to hearsay rule was waived where the specific ground of objection asserted at trial was irrelevancy); Reis v. State, 248 So.2d 666 (Fla. 3d DCA 1971); Bertone v. State, 224 So.2d 400 (Fla. 3d DCA 1969), cert. denied, 398 U.S. 943, 90 S.Ct. 1860, 26 L.Ed.2d 279 (1970); see Roban v. State, 384 So.2d 683 (Fla. 4th DCA 1980), pet. for review denied, 392 So.2d 1378 (Fla.1980) (defendants who relied on different ground for objection at trial to introduction of evidence than on motion to suppress waived previous grounds relied upon).

Affirmed.