author: RYDER, Acting Chief Judge.

text:
    George F. LEWIS, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, Respondent.
    No. 81-1105.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.

      H. Stephen Frank, Fort Myers, for petitioner.
    Frederick H. Wilsen, Asst. Gen. Counsel, Dept, of Professional Regulation, Tallahassee, for respondent.
   RYDER, Acting Chief Judge.

George F. Lewis, a licensed real estate broker in Fort Myers, seeks reversal of a final order of the Board of Real Estate (Board), a board within the Department of Professional Regulation (Department), Division of Professions, rejecting a hearing officer’s recommended order that the Department’s administrative complaint be dismissed.

The Department filed a complaint on January 31, 1980, charging Lewis violated section 475.25(l)(a), Florida Statutes (1977). The complaint alleged that Lewis was guilty of “fraud, misrepresentation, dishonest dealing and breach of trust” in his real estate dealings with Dwight L. and Edith M. Strong during 1977 and 1978. The complaint sought suspension of Lewis’ real estate license or otherwise discipline his right to practice thereunder.

At the conclusion of an administrative hearing on December 5, 1980, the hearing officer issued his findings of fact, conclusions of law and recommendation that the complaint be dismissed. That same day, he submitted the recommended order to the Board.

In a final order dated May 13, 1981, the Board rejected the hearing officer’s findings of fact, conclusions of law and recommendation, and suspended Lewis’ license for six months.

Lewis asserts that the Board failed to comply with section 120.57(l)(b)(9), Florida Statutes (1979), which provides in pertinent part:

The agency in its final order .. . may not reject or modify the findings of fact unless the agency first determines from a complete review of the record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence.. . . (Emphasis added).

A review of the final order indicates that the Board simply declared in relevant portion that:

[t]he said recommended order is rejected .... The Board of Real Estate rejects the Findings of Fact and states that said Findings were not based upon competent substantial evidence and said determination is based upon a review of the complete record.

Such a conclusionary rejection of the hearing officer’s recommended order just simply is not permitted for, in rejecting the hearing officer’s order, the agency must state with particularity which findings are rejected and why. Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla. 4th DCA), cert. denied, 364 So.2d 884 (Fla.1978); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977). Further, the critical reason for requiring an administrative agency to state their conclusions and orders with specificity is to facilitate judicial review. Veasey v. Board of Instruction, Palm Beach County, 247 So.2d 80 (Fla. 4th DCA 1971).

Lewis also argues that the Board failed to observe section 120.59(l)(b), Florida Statutes (1979), which reads in significant part:

(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within 90 days:
******
(b) After a recommended order is submitted to the agency and mailed to all parties, if hearing is conducted by a hearing officer ....
******
The 90-day period may be waived or extended with the consent of all parties. (Emphasis added).

The hearing officer issued his recommended order to the Board on December 5, 1980. The Board rendered its final order on May 13, 1981, sixty-eight days after the ninety-day period expired. Thus, the Board flagrantly violated the mandatory ninety-day rule of section 120.59(l)(b).

Opposing views have been expressed regarding the consequences of a section 120.-59(l)(b) violation. Compare G & B of Jacksonville, Inc. v. Florida Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla.1979) (reversal of agency action hinges upon whether the delay impaired either the fairness of the proceedings or the correctness of the action) with Hyman v. State, Department of Business Regulation, Division of Pari-Mutuel Wagering, 399 So.2d 1098 (Fla. 3d DCA 1981) (time violation renders agency action unenforceable in a proceeding in which the agency is enforcing regulatory laws).

Section 120.68(8), which deals with judicial review, states in relevant part as follows:

The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.

Where an agency’s violation of the ninety-day rule constitutes a material error in procedure which causes severe prejudice and no extenuating circumstances exist which would relieve the agency from strict compliance with such rule, we shall reverse the agency action. Compare Pinellas County v. Florida Public Employees Relations Commission, 379 So.2d 985 (Fla. 2d DCA 1980) (reversal justified where a time violation for which no extenuating circumstances existed adversely affected the fairness of the proceedings and constituted a material error in procedure) with School Board of Sarasota County v. Florida Public Employees Relations Commission, 382 So.2d 1361, 1362 n.1 (Fla. 2d DCA 1980) (reversal not justified on grounds of a time violation where extenuating circumstances existed and no severe prejudice was shown). In the case at bar, Lewis has not demonstrated that the time violation resulted in severe prejudice. Thus, we choose not to reverse the final order on this ground.

Accordingly, pursuant to section 120.-68(13)(a)(l), we vacate the final order for violation of the particularity requirement of section 120.57(l)(b)(9), and remand with instructions to the Department to conduct such further proceedings necessary to produce a final order consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.

      . We note that an agency may request a stipulation for a waiver or extension of the time limit pursuant to section 120.59(1)(b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alan Ward COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1426.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We adhere to our recent decision in Patterson v. State, 408 So.2d 785 (Fla. 2d DCA 1982), and, therefore, hold that it was error to impose the three-year mandatory minimum term of imprisonment specified in section 775.087, Florida Statutes (1979), upon appellant when he was sentenced under the Youthful Offender Act, chapter 948, for the crime of attempted armed robbery. Trent v. State, 403 So.2d 1131 (Fla. 4th DCA 1981). And, for the reasons set out in Patterson, we reject appellant’s contention that his sentence is illegal under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

Therefore, we vacate the three-year mandatory minimum provision, but otherwise affirm his sentence.

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


text:
    Margaret J. NEAL, a/k/a Margaret Jones, Appellant, v. Nancy Jean MATHERSON and Larry Davis, Appellees.
    No. 81-1594.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.
    Carol C. Murphy of Florida Rural Legál Services, Inc., Winter Haven, for appellant.
    James M. Shuler of Kass, Hodges & Mas-sari, Tampa, for appellees.
   PER CURIAM.

This appeal from an order dismissing two counts of the counterclaim is dismissed as being an appeal from a nonfinal, nonappealable order because the two counts are interrelated with and arise out of the same factual background as other remaining counts in the counterclaim. Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974); North Indialantic Homeown ers Association v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980).

SCHEB, C.J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    ASHTON UTILITIES & SEPTIC TANK COMPANY and Florida Farm Bureau Insurance Company, Appellants, v. Roger G. IRWIN (deceased) and Lloyd L. Irwin, Sr. and May A. Irwin, Appellees.
    No. AB-426.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Thomas A. Koval of the Law Office of Jones, Foster & Moss, Vero Beach, for appellants.
    Robert C. Clark, Vero Beach, for appel-lees.
   PER CURIAM.

The employer/carrier appeal an order finding that the deceased worker’s parents are entitled to dependency benefits. We reverse.

The deputy commissioner found that the deceased contributed to a “family pot” and that the family relied on these contributions to maintain its standard of living. Relying on Ledger v. Geiger-Jones Construction, 329 So.2d 3 (Fla.1976), and Floriland Farms v. Peterman, 131 So.2d 477 (Fla.1961), he determined that the parents were dependent upon the deceased worker and entitled to death benefit's under Section 440.16, Florida Statutes (1979).

The flaw in the deputy commissioner’s findings is that the “family pot” supported two nieces of the deceased as well as the worker and his parents. The substantiality of the decedent’s contributions should be measured only by the needs of the statutory dependents, South Florida Grassing v. Bunns, 399 So.2d 93 (Fla. 1st DCA 1981); Urban League of Greater Miami v. Lopez, 366 So.2d 883 (Fla.1978), cert. denied, 366 So.2d 883 (Fla.1978). In South Florida Grassing this Court affirmed an order finding dependency after the deputy commissioner excluded the needs of foster children from his findings. Since nieces are not statutory dependents under Section 440.16, Florida Statutes (1979), they should have been excluded.

The deputy commissioner’s order, which was entered before the South Florida Grassing opinion was released, does not make it clear whether or not he included the nieces in his findings. On remand he may make such findings on the dependency of the parents as are appropriate based on the record before him. If the deputy commissioner is unable to make a finding of dependency, the claim should be dismissed.

REVERSED and REMANDED.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    James PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. AC-178.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant’s sentences for attempted burglary of an occupied dwelling with intent to commit assault and for attempted sexual battery with force likely to cause serious personal injury exceed the maximum allowed by statute. Section 777.-04(4)(b), (c) Fla.Stat. (1979). The cause is REMANDED for resentencing.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Deborah CHITTICK (Sottile), Appellant, v. EASTERN AIR LINES, INC. and American Motorists Insurance Company, Appellees.
    No. AC-437.
    District Court of Appeal of Florida, First District.
    March 1, 1982.

      L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellees.
   WIGGINTON, Judge.

The sole issue in this appeal is whether the deputy commissioner erred in dismissing the Chittick claim as a sanction for her attorney’s failure to appear at a dismissal hearing when the attorney was not afforded proper notice. We agree with claimant’s contentions and reverse the deputy commissioner’s order of dismissal.

This is claimant’s second appeal that has grown out of her injury incurred in December, 1978. She filed her initial claim in October, 1979, while living in California, and when she refused the carrier’s request to come from California to attend her deposition, she suffered the deputy commissioner’s sanction of having her claim dismissed. Chittick appealed that September, 1980, order to this court.

While that case was on appeal, Chittick filed a new claim in December, 1980, seeking some different benefits than were in her original claim. The carrier filed a motion to dismiss this second claim on the grounds of being untimely filed and frivolous in view of the previous dismissal and pending appeal. The carrier’s “Motion to Dismiss”, included a paragraph entitled “Notice of Hearing” in which the carrier stated the requisite information as to time, date and location where the deputy commissioner would hear the motion. The pleading contained a certificate of service to Chittick’s attorney.

The next record activity is a letter from claimant’s attorney to the deputy commissioner dated April 2, 1981, stating that because the case was currently on appeal, the deputy had no jurisdiction over further proceedings. Without specifically mentioning the motion to dismiss or the noticed hearing, the letter also stated, “We received no due notice from your office as required by the statute in connection with any formal proceedings.”

On April 15, 1981, the deputy entered an order dismissing the second claim, stating:

In view of my prior order dismissing the previous claim for the claimant’s failure to cooperate in discovery proceedings, and in view of the failure of the claimant’s attorney to appear for the hearing on the Motion to Dismiss the claim of December 15,1980, it is hereby ordered and ajudged (sic) that the claim filed on December 15, 1980, is hereby dismissed.

From that order came this appeal.

The Industrial Relations Commission has held that a judge (now deputy) was “without jurisdiction to proceed with the hearing” where the record contained “nothing to show that the employer actually had notice of the hearing.” Burdines, et al. v. Wilson, IRC Order 2-2767 (June 18, 1974), cert. denied sub nom. Wilson v. Burdines, et al., 313 So.2d 38 (Fla.1975). Also see Luzak Food Corporation v. Dovel, IRC Order 2-3035 (Sept. 20, 1976), and Donald M. Patterson, Inc. v. Carnegie, IRC Order 2-2914, cert. denied 336 So.2d 600. Although the carrier’s certificate of service may be evidence that the claimant’s attorney had notice, Rule 7, WCRP, requires that an application for hearing be made to the division or the deputy commissioner, whichever is appropriate, and the hearing will be set and notice will be given by that entity. Rule 8 specifically provides that when a hearing is to be held, The deputy .. . shall give the claimant and other interested parties at least fifteen days notice by certified mail.” That rule is supplemented by Section 440.25(3)(a) (1980 Supp.), requiring the deputy commissioner to issue notice of the proposed hearing upon the claimant and other interested parties by mail. We find the notice in this instance to have been incorrectly issued and statutorily deficient.

Even if service of the notice of hearing upon claimant’s attorney had been perfected, dismissal of the claim would still be in error. Except for Rule 10, WCRP, relating to pretrial procedures, wherein the presence of the party or his attorney is necessary to formulate further proceedings, there is no requirement that a party or his attorney attend any properly noticed Chapter 440 proceeding. The deputy may proceed with a properly noticed hearing even though a party has failed to appear. See Hoover Aircraft Products Co., et al. v. Rodriguez, 9 FCR 106, cert. denied sub nom., 315 So.2d 97 (Fla.1975). As a result, Rule 15 sanctions are found to be inappropriate and incorrectly applied as a legal basis for the dismissal of the claim for failure of claimant’s attorney to appear at the motion hearing.

We reverse and the claim is reinstated for further proceedings.

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


text:
    Ronald WATTS, Appellant, v. STATE of Florida, Appellee.
    No. AC-481.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals to this court from an order revoking his probation. The only point which merits discussion is the inclusion of Condition 4 in the written order of revocation.

Appellant’s probation supervisor filed an affidavit charging appellant with violation of Conditions 1, 2, 4 and 7 of his probation. At the probation revocation hearing, the State produced no evidence whatsoever pertaining to violation of Condition 4. The charge that appellant violated Condition 4 was, therefore, dismissed upon defense counsel’s oral motion to that effect. Subsequent thereto, the court questioned appellant as to factual matters concerning violation of Condition 4 and found that appellant violated his probation. The order revoking probation recited that appellant violated Conditions 1, 2, 4 and 7.

The State dismissed the charge that appellant violated' Condition 4 of his probation. Therefore, a finding of a violation of that condition, as reflected in the written order of revocation was error. The evidence supports the findings that appellant violated Conditions 1, 2 and 7 and thereby supports the order below. We are unable to determine, however, whether the trial judge would have revoked probation and imposed the same sentence without a violation of Condition 4 and must reverse the order of revocation and remand this cause to the trial judge for such redetermination as may be warranted. Clemons v. State, 388 So.2d 639 (Fla. 2d DCA 1980).

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    The AUSTIN COMPANY and General Accident Group, Appellants, v. Paul LINDENBERGER, Appellee.
    No. AD-50.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellants.
    Donald F. Harrington, P. A., Miami, for appellee.
   WIGGINTON, Judge.

Claimant sustained a compensable injury to his lower back on May 18,1976, for which he was awarded compensation benefits. The compensation was paid through August 9, 1978. In September, 1978, at claimant’s request, the employer/carrier (E/C) authorized an evaluation of claimant’s physical condition. Claimant thereafter received treatment from two physicians, and, on May 5, 1980, filed a Petition for Modification pursuant to Section 440.28, Florida Statutes (1979). By order dated April 20, 1981, the deputy commissioner ruled that claimant had suffered an increase in his “permanent and partial loss of wage earning capacity” from 12% to 25%. He therefore ordered the E/C to pay increased compensation benefits and to furnish “such remedial treatment, care and attendance as the nature of the injury or the process of recovery may require.”

On appeal, the E/C challenged the deputy’s order on three points. We agree with the E/C and reverse as to all three.

First, the E/C contend that the deputy’s order modifying the February, 1978, order is not based on competent substantial evidence. Our review of the record substantiates that contention. The testimony offered at the hearing as to changed condition and loss of wage earning capacity is at best, skeletal. The one physician offered no testimony as to observed symptoms or objective facts. Oglesby v. Southern Bell Telephone and Telegraph Company, 897 So.2d 291 (Fla.1981). The other physician testified that there had been no change in condition. Claimant’s own testimony, as to increase in intensity of pain and inability to do hard work, standing alone, is insufficient to establish change in condition. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Cheathem v. Fruit Bowl, Inc., 184 So.2d 171 (Fla.1966).

Second, the E/C argue that there is insufficient evidence on which to predicate a finding of increased wage earning capacity loss from 12% to 25%. We agree. The record reveals that the E/C sufficiently rebutted claimant’s alleged job search. See generally, Suave Shoe Corporation v. Suarez, 396 So.2d 777 (Fla. 1st DCA 1981) and cases cited therein.

Finally, E/C complain that the deputy erred in ordering that appellants furnish claimant remedial treatment, care and attendance when no corresponding claim to those benefits was made by claimant. This court has recognized that “due process problems arise when the deputy commissioner undertakes to rule on issues not framed by the parties.” Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980); Central Oil Co. v. Campen, 390 So.2d 191 (Fla. 1st DCA 1980). To prevent surprise and prejudice, Section 440.19(2)(d) requires any claim for benefits filed with the division be specific as to the particular benefits being claimed.

In the instant case, claimant did not file a claim for remedial attention pursuant to Section 440.19(2)(b). His Petition for Modification did not make reference to any request for remedial attention, nor did the Notice of Hearing. Neither was any claim for remedial attention made at the hearing. Consequently, the deputy ruled on an issue which was neither raised nor anticipated by the parties herein. Thus, the issue not being framed by the parties and the record being otherwise silent, we agree that there was a total lack of notice and the award of remedial attention benefits was incorrect. Campen, Id. at 192; See also Lawton v. Florida Steel Corporation, 403 So.2d 628 (Fla. 1st DCA 1981); and Albertson's Southco v. Williams, 402 So.2d 1342 (Fla. 1st DCA 1981).

Since there is no evidence of a change in claimant’s condition and no evidence that he conducted an adequate work search, claimant has failed to demonstrate a disability in excess of the rating of 12% permanent partial loss of wage earning capacity upon which the February, 1978, order was based. Accordingly, the order of the deputy is reversed.

Because of our disposition of the points raised on appeal, we need not rule on the issue raised on the cross-appeal.

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


text:
    BROWARD INVESTMENT CORPORATION and G.A.B. Business Services, Appellants, v. Roger PAIEMENT, Appellee.
    No. AD-143.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellants.
    Robert B. Scharf of Di Giulian, Spellacy & DiChiara, Fort Lauderdale, for appellee.
   WIGGINTON, Judge.

This is a workers’ compensation appeal from an order of the deputy commissioner awarding claimant temporary total disability benefits, permanent partial impairment benefits, penalties, interests, costs and attorney’s fees. We affirm in part, and reverse in part.

On or about February 27, 1977, the date of the injury, claimant, a sixty-four year old male, was the owner-general manager of a small motel on Ft. Lauderdale Beach. While replacing a guest’s television, claimant slipped and fell, injuring his back. He received intermittent treatment for the next three years. Claimant filed his claim on August 5, 1980, claiming all benefits for which he was. entitled under Chapter 440. A hearing was held on February 17, 1981, after which the deputy commissioner awarded TTD benefits from February 28, 1977, through January 14, 1981, and benefits for permanent partial impairment at 20% of the body as a whole thereafter.

We reverse that part of the deputy’s order awarding claimant TTD benefits for the entire period from February 28, 1977, through January 14, 1981. Our review of the record reveals that there is lacking medical evidence as to claimant’s being temporarily totally disabled throughout the whole three-year period. Further, there was no evidence of a conscientious effort on claimant’s part to return to work during any period of time. Absent medical evidence that claimant was unable to work, and absent an effort to return to work in order to show his inability to work, claimant is not entitled to receive TTD benefits. See generally Palm Beach Newspapers, Inc. v. Roston, 404 So.2d 174 (Fla. 1st DCA 1981); and McKenney v. School Board of Palm Beach County, 408 So.2d 655, (Fla. 1st DCA, 1981).

However, from the record, there is competent substantial evidence on which to base a finding that claimant was temporarily totally disabled during portions of that period of time.

Consequently, we hold that claimant is entitled to TTD benefits from February 28, 1977, through November 1,1977; from July 27, 1978, through January 31, 1979; and from August 5, 1980, through January 14, 1981. We affirm that portion of the deputy’s order awarding permanent partial benefits, penalties and costs.

Accordingly, this cause is reversed and remanded with instructions that the deputy commissioner enter an order consistent with this opinion.

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


text:
    Climon HOSIE, Appellant, v. STATE of Florida, Appellee.
    No. AI-328.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Climon Hosie, in pro. per., for appellant.
    No appearance by appellee.
   PER CURIAM.

AFFIRMED on authority of Lee v. State, 392 So.2d 913 (Fla. 1st DCA 1980).

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Stanley SZYBINSKI, Appellant, v. GULF ARTIST PRODUCTIONS, INC., a Florida corporation, WJA Realty, a limited partnership d/b/a World JAI-ALAI, Inc., and Northeastern Fire Insurance Company of Pennsylvania, Appellees.
    Nos. 80-2481, 81-1142.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Michael A. Nuzzo and James E. Doddo, Miami, for appellant.
    Joe N. Unger, Pomeroy, Betts & Miller, Miami, for appellees.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff, Szybinski, has perfected the above-identified appeals from two final judgments entered in the Circuit Court of Dade County, one in favor of the defendant-appellee, WJA Realty, d/b/a World Jai-Alai, Inc., and the other judgment being in favor of the defendant-appellee, Gulf Artist Productions, Inc.

The appellant has abandoned his appeal as to the judgment in favor of the appellee-defendant Gulf Artist Productions, Inc.; that judgment is therefore affirmed.

Upon review of the record with reference to the judgment entered in favor of the appellee-defendant WJA Realty, we determine that the appellant has failed to demonstrate reversible error. Therefore, the judgment entered in favor of said defendant is likewise affirmed.

Affirmed.


text:
    Barfield BURCH, Jr., Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-590, 81-614.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Bennett -H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

Petitioner, pursuant, to Florida Rule of Appellate Procedure 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: SCHWARTZ, Judge.

text:
    John E. O'CONNOR, et al., d/b/a Colonial Palms Golf Course, Petitioners, v. DADE COUNTY, Respondent.
    No. 81-665.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied March 23, 1982.
    John G. Fletcher, South Miami, for petitioners.
    Robert A. Ginsburg, County Atty. and Stanley B. Price and Eileen Mehta, Asst. County Attys., for respondent.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The Dade County Commission improperly adopted a zoning plan with respect to the petitioners’ property without first seeking the recommendation of the county’s developmental impact committee as clearly and mandatorily required as to an area of this size by pertinent provisions of the Dade County Code, § 33-303.1(D) (1959). The af-firmance of that action by the circuit court, acting in its appellate capacity, was therefore erroneous and a departure from the essential requirements of the law. Gulf & Eastern Development Corp. v. City of Ft. Lauderdale, 354 So.2d 57 (Fla.1978); City of Miami Beach v. State ex rel. Consolo, 279 So.2d 76 (Fla. 3d DCA 1973), cert. denied, 292 So.2d 24 (Fla.1974); Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970). Consequently, treating this appeal as a petition for certiorari, Save Brickell Ave., Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981), we quash the circuit court order of affirmance of February 18, 1981, as amended March 4, 1981, and remand the cause with directions to vacate and set aside the commission action of October 28, 1980 under review.

Certiorari granted.


text:
    Olga CHIENG, Appellant, v. Jorge SALAZAR, M.D., and Clinica Associacion Cubana De Hialeah, Inc., H.M.O., Appellees.
    No. 81-1076.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Charles L. Neustein, Miami Beach, for appellant.
    Charles B. Patrick, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Plaintiff appeals from an order dismissing her claims against defendants for failure to obtain an attorney to represent her following the court’s order allowing the withdrawal of the attorney that filed the complaint and granting her thirty days within which to employ another attorney.

Upon motion of the defendants, the trial court entered an order of dismissal, without prejudice. It is from that order that plaintiff appeals.

We hold that the trial court erred in entering the order of dismissal. Therefore we reverse. See Section 454.18, Florida Statutes; Kahn v. Milon, 332 So.2d 149 (Fla. 3d DCA 1976); Carr v. Grace, 321 So.2d 618 (Fla. 3d DCA 1975), cert. denied, 348 So.2d 945 (Fla.1977).

Reversed and remanded for further proceedings.


text:
    Irene DRAKE, Appellant, v. KNOWLTON LAB & CLINIC, INC., Appellee.
    No. 81-1689.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    J. Russell Hornsby, Orlando, for appellant.
    George, Hartz & McNary, Miami, for ap-pellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980).


text:
    ALFARERIA BLOQUEVEN, C. A., a Venezuelan corporation, Appellant, v. Jaime MITRANI, Appellee.
    No. 81-2306.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Diaz-Asper & Gutierrez, Coral Gables, for appellant.
    Murray B. Weil, Jr., P. A., and L. George Scheer, Miami Beach, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The denial of the appellant’s barebones motion to quash service of process is affirmed without prejudice to the appellant’s right to attempt to factually demonstrate that the court lacks jurisdiction over the person of the appellant.

Affirmed.


author: ORFINGER, Judge.

text:
    Todd LONG, a minor, by and through his mother and next friend, Lona T. Long, individually, and as Administratrix of the Estate of George E. Long, deceased, Appellants, v. Mrs. Barbara M. MARTIN, as guardian of Reid Martin, and as personal representative of the Estate of Floyd H. Martin, deceased, and Cessna Aircraft Company, a foreign corporation, et al., Appellees.
    No. 81-697.
    District Court of Appeal of Florida, Fifth District.
    March 3, 1982.

      David Hertzig of Hoffman & Hertzig, P. A., Coral Gables, for appellants.
    Ralph P. Richard of Thornton, David & Murray, Miami, for appellee Cessna.
    No appearance for appellee Martin.
   ORFINGER, Judge.

This appeal questions a cost judgment entered against appellant. We reverse.

As a result of the crash of a Cessna aircraft, the minor appellant, Todd Long, was injured and his father, George Long, was killed. Suit was instituted by Lona Long, individually, and as mother and next friend of the minor plaintiff and as personal representative of the estate of her deceased husband. During the course of the proceedings, a notice of voluntary dismissal, pursuant to Florida Rule of Civil Procedure 1.420(a), was filed on behalf of Todd Long. The action continued on behalf of the other plaintiffs.

Following the dismissal, Cessna moved to assess costs against the dismissed plaintiff. The motion listed various deposition expenses totalling $146.99, and then a series of travel expenses for attending various depositions and court hearings, totalling $2,045.34.

A cost judgment was entered in favor of Cessna for $1,285.76 and Todd Long appeals, raising two issues: (1) that the cost award was premature because the action still continues; and (2) that the court erred in awarding travel expenses for attending depositions or hearings.

Florida Rule of Civil Procedure 1.420(d) provides that

“costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”

The rule makes no distinction between dismissals by a single plaintiff and by one of several plaintiffs and we see no reason to create such a distinction. The interpretation sought by appellant would give an advantage to one of several plaintiffs not available to a single plaintiff, and not warranted by the rule in question.

We do find merit, however, in appellant’s second point. The case is here on a stipulated record which does not include a transcript of the cost hearing, which apparently was not recorded. Neither does the order awarding costs itemize the costs awarded, which makes appellate review more difficult. Thus, we would be constrained to affirm the order were it not clear that it necessarily includes costs not properly taxable.

Of the costs requested by appellee in its motion, only $146.99 represents the cost of depositions, which are ordinarily proper assessable costs. The remainder of the motion itemizes travel costs of the attorneys to attend depositions and court hearings. The award of $1,285.76 thus unmistakably includes at least some travel costs.

In general, air fare or other personal or travel expenses of counsel to attend depositions are not taxable costs. Sunshine Kitchens, Inc. v. Mallin, 388 So.2d 1260 (Fla.3d DCA 1980), review denied, 399 So.2d 1146 (Fla.1981); Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., 374 So.2d 626 (Fla.2d DCA 1979); Aetna Life Ins. Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978). Counsel’s travel expenses in general are not taxable. Butler v. Borowsky, 120 So.2d 656 (Fla.3d DCA 1960). Appellee points to White v. Cowles Florida Broadcasting, 361 So.2d 821 (Fla. 1st DCA 1978), as a holding that travel expenses are properly taxable, but this case dealt with Rule 1.442, the “offer of judgment” rule, not 1.420(d), and is thus distinguishable. In White, defendants had twice made offer of judgment, and the verdict ultimately recovered was less than both offers. Further, the deposition in question was initiated by plaintiff, after the offers had been made and rejected. No such situation confronts us here.

The cost judgment is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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


author: COBB, Judge.

text:
    William J. GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 81-777.
    District Court of Appeal of Florida, Fifth District.
    March 3, 1982.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant Gilbert was convicted and sentenced for both first-degree robbery (robbery while carrying a deadly weapon, i.e., a tire iron), and aggravated battery (battery with a deadly weapon, the tire iron). The information charged:

COUNT I
CHARGE: ROBBERY, in Violation of F.S. 812.13(1) & (2)(a)
SPECIFICATIONS OF CHARGE: In that WILLIAM JOSEPH GILBERT, on or about the 8th day of November, 1980, at or near Daytona Beach within Volusia County, Florida, did unlawfully by force, violence, assault or putting in fear, take certain property, to-wit: U.S. currency, of a value more than One ($1.00) Dollar, the property of Kevin Daley Hawley, and in the course of committing said robbery, carried a firearm or deadly weapon, to-wit: a tire iron.
COUNT II
CHARGE: AGGRAVATED BATTERY, in Violation of F.S. 784.045(l)(b)
SPECIFICATIONS OF CHARGE: In that WILLIAM JOSEPH GILBERT, on or about the 8th day of November, 1980, at or near Daytona Beach within Volusia County, Florida, did unlawfully commit a battery upon Kevin Daley Hawley, to-wit: by actually touching or striking said Kevin Daley Hawley against his will, and in commission of said battery did use a deadly weapon, to-wit: a tire iron.

At the close of the state’s case, and again at the close of all the evidence, Gilbert’s counsel moved for a directed verdict on Count II, arguing the battery was a lesser included offense of the robbery. Concluding that “the State’s case taken at its best would support not only a robbery but also an aggravated battery,” the trial court denied the motions.

The case went to the jury, and it found Gilbert guilty on both counts. The trial court adjudicated Gilbert guilty of both crimes and later sentenced him on both. Gilbert timely appeals.

Gilbert’s principal contention is that the trial court erred by convicting and sentencing him for both crimes. He argues: “To convict Appellant of robbery in this case, the State had to prove that Appellant beat Kevin Hawley with a tire iron.” Clearly, under the allegations of the two counts, this is not true. The two counts of the information charged separate and discrete crimes. See Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Thus, Florida statutory law permits separate convictions and sentences based on the pleadings. See § 775.021(4), Fla.Stat. (1979).

The appellant also contends that, despite the pleadings, the proof at trial shows that it was not the mere carrying of the tire iron that facilitated the robbery, but the use of it by striking the victim with it— thus rendering Count II a “category four” lesser included offense of Count I under Brown v. State, 206 So.2d 377 (Fla.1968). See also Mahaun v. State, 377 So.2d 1158 (Fla.1979). Therefore, says appellant, under the aforesaid Florida statute, a separate sentence for the lesser offense of aggravated battery is precluded. See State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

The state responds to this argument that there was proof adduced at trial that the victim was struck by the tire iron after his property was taken. We find that the record supports the state in this regard. Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980); Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980).

Accordingly, Hegstrom does not apply to the instant case, and we find that the appellant was properly convicted and sentenced for both offenses: robbery and aggravated battery.

Appellant’s remaining point on appeal— that the trial judge erred by instructing the jury on the unexplained possession of recently stolen property — is lacking in merit and, additionally, was not properly preserved for appellate review.

AFFIRMED.

ORFINGER and SHARP,'jj., concur.


text:
    KLAESEN BROTHERS, INC., a Florida corporation, Appellant, v. HARBOR INSURANCE COMPANY, a foreign corporation authorized to do business in Florida, Appellee.
    No. 80-1618.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Slawson & Burman, North Palm Beach, and Edna L. Caruso, West Palm Beach, for appellant.
    Arthur M. Simon and Fulvia A. Morris of Goodwin, Ryskamp, Welcher, Carrier & Do-noff, P. A., Miami, for appellee.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

The issues here involve questions of insurance coverage.

Appellant was sued in a wrongful death case, the complaint alleging that the active tortfeasor, one Pitts, was an employee of appellant and in the course and scope of such employment at the time of committing the tort. The complaint also alleged the alternative theory of negligent hiring. Appellant made demand on appellee, Harbor Insurance Company, to defend the suit, appellant claiming to be an additional insured under the Carnival Liability coverage of the insurance policy which appellee had issued to Amusements of America, the named insured. Upon the insurance company denying coverage, appellant brought this action for declaratory judgmént. On facts without significant dispute, the trial court held that the insurance policy provided no coverage to appellant for the claim made against it in the wrongful death action.

Appellant owns and operates carnival attractions. It booked an attraction, known as the Himalaya Ride, with Amusement of America for a carnival held at Cooper City in February 1976. Appellant hired Pitts to erect the ride and load people on to it. Pitts had only been working three or four days when he shot and killed one Hardison. The representative of Hardison’s estate sued appellant, alleging (1) the negligent hiring of Pitts who allegedly had a known criminal record and a known violent nature, (2) that Pitts’ employment required him to sleep and live on the carnival premises, and (3) that at the time of the killing Pitts was acting in his capacity as employee and/or agent of appellant.

Section II of the carnival liability coverage of the policy, titled “Persons Insured,” provided as follows:

Each of the following is an insured under this insurance to the extent set forth below:
(d) A person or organization owning or operating a carnival attraction but only while such person or organization is operating the carnival attraction with the express permission of the insured in connection with a carnival owned or operated by the named insured....

Since appellant owned and was operating a carnival attraction, a Himalaya Ride, with a carnival operated by Amusements of America and with the latter’s express permission, appellant fit squarely within the definition of “an insured” under the policy.

The insuring agreement of the policy provided as follows:

The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or operation of a carnival and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent . .. (Emphasis added).

Appellee contends, we think correctly, that the policy only provides coverage for carnival attractions, i.e., only for bodily injury or property damage arising out of the ownership, maintenance or operation of the carnival and all operations necessary or incidental thereto. Thus, (appellee argues) “... there is nothing in the ... policy which would justify an extension of its terms to a point which would render an intentional criminal act which followed a drunken brawl, a ‘necessary or incidental’ operation in the business of maintaining a carnival attraction.” But that position, while it could quite likely ultimately exonerate ap-pellee from any duty to pay, does not diminish appellant’s status as “an insured” by policy definition, nor does it have any bearing on appellant’s entitlement to a defense.

An insurance company’s duty to defend is separate and distinct from its duty to pay, Burton v. State Farm Mutual Insurance Company, 335 F.2d 317 (5th Cir. 1964), and more extensive. Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979)._ The insurer’s duty to defend is determined solely by the allegations in the complaint against the insured, Accredited Bond Agencies, Inc. v. Gulf Ins. Co., 358 So.2d 1252 (Fla.1977), not by the insured’s version of the facts, St. Paul Fire and Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973), nor the insured’s defenses, Carolina Aircraft Corp. v. American Mutual Liability Ins. Co., 517 F.2d 1076 (5th Cir. 1975). If the allegations in the plaintiff’s pleading against the insured state facts bringing the injury within the coverage of the policy, the insurer must defend irrespective of the insured’s ultimate liability to the plaintiff, Battisti v. Continental Cas. Co., 406 F.2d 1318 (5th Cir. 1969), the duty to defend not being limited only to meritorious suits. Burton v. State Farm Automobile Ins. Co., supra. The wrongful death complaint alleges (at least marginally and by reasonable implication) that appellant’s conduct in negligently hiring and retaining Pitts, and its vicarious liability for Pitts’s acts while in the course and scope of his employment, arose out of the ownership, maintenance or operation of a carnival, and operations necessary or incidental thereto. These allegations, even if untrue and even though denied by appellant, entitled appellant to a defense as an insured under the policy.

The judgment is reversed.

DOWNEY and BERANEK, JJ., concur.

      . Both the trial court and the insurer may have been lead astray on the the coverage issue by (1) the fact that the killing, which occurred at 3 a. m., well after the carnival had been closed down for the night, was the aftermath of a drunken barroom brawl involving Pitts and Hardison, and (2) appellant’s understandable denial that Pitts was then in the course and scope of his employment. But the complaint in the wrongful death action (with which we must be concerned for coverage questions) alleges only that the killing occurred while Pitts was acting as employee and/or agent of appellant, without details of the killing.


author: GLICKSTEIN, Judge.

text:
    RAIDLE-COOK INSURANCE, INC., Milt Craven and Employers Reinsurance Corporation, Appellants, v. PALM BEACH SANITATION, INC. and Lumbermen's Mutual Casualty Company, Appellees.
    No. 80-2148.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Keith H. Park of Albury, Park & Glenn, West Palm Beach, for appellants.

      Robert D. McAliley of Brennan, McAliley, Hayskar & McAliley, and William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

Appellants, Raidle-Cook Insurance, Inc. (Raidle-Cook), Milt Craven (Craven), and Employers Reinsurance Corporation (Employers), were defendants in an action for negligence and breach of contract relative to the obtaining of a workmen’s compensation insurance policy. They take this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) from an order granting, inter alia, the motion of the plaintiff-appellee, Palm Beach Sanitation, Inc. (Palm Beach), for summary judgment as to those defendants. We reverse.

At the outset we note none of the parties to this appeal argued that there were unresolved questions of fact.

In early March of 1978, Palm Beach asked Craven, one of Raidle-Cook’s agents, to obtain for it a workmen’s compensation policy. Because the policy in effect would have lapsed at 12:01 a. m., March 27, 1978, Palm Beach wanted the new policy to be effective from then on. Although Craven attempted to get several policies in the “voluntary” market, he was unable to do so because of Palm Beach’s high risk experience. Around 1:30 p. m. on March 23rd, after the last attempt proved unsuccessful, Craven mailed Palm Beach’s application with a $66,455 check to the Florida Compensation Rating Bureau in Jacksonville. The Bureau designated Lumbermen’s Mutual Casualty Company (Lumbermen’s) as the insurer to be bound.

This action arose because the Bureau bound Lumbermen’s as of 12:01 a. m. on March 28, 1978, leaving a gap of one day, March 27th, in Palm Beach’s coverage; the same day a Palm Beach employee was seriously injured on the job. Because Palm Beach was uninsured that day, it was required to pay from its own funds substantial benefits to the injured employee pursuant to an order of the Judge of Industrial Claims.

Palm Beach sued Raidle-Cook, Craven, and Employers (Raidle-Cook’s errors and omissions carrier) for negligence and breach of contract, seeking indemnification for the payments it had made to its employee. Palm Beach joined Lumbermen’s as a defendant in order to obtain a declaration that coverage began 12:01 a. m., March 27, 1978, or a reformation of the contract making March 27th the date on which coverage began. Subsequently, the trial court awarded summary judgment to Palm Beach against the defendants-appellants. Implicitly it concluded Lumbermen’s was not bound until 12:01 a. m., March 28, 1978.

Appellants claim Lumbermen’s was bound at 12:01 a. m., March 27,1978, and no gap existed in Palm Beach’s coverage. Accordingly, appellants argue Palm Beach did not have a cause of action against them. We agree.

The National Council on Compensation Insurance wrote and submitted the rules for binding carriers under the Assigned Risk Plan for Florida to the Florida Insurance Commissioner for consideration and approval. In March of 1978, the last sentence of Rule 2(b) of the foregoing plan provided: “Coverage will be bound at 12:01 A.M. on the first day following receipt of the deposit premium and the completed application by the Administrative Office, or expiration of existing coverage, whichever is later.” In this case the governing administrative office was the Bureau.

The issue here is reduced to the following question: when did the Bureau receive the application and the premium check? Craven mailed the application with the premium check about 1:30 p. m., March 23, 1978. They arrived in Jacksonville the following morning and were available to be picked up at the Bureau’s Arlington Station Post Office Box between 8:30 a. m. and 12:30 p. m., Saturday, March 25,1978. Because the Bureau did not pick up mail on Saturdays, it did not pick up the application and the premium check until Monday. Thus, the Bureau stamped March 27th as the receipt date for the application, changed the desired effective date, and bound coverage as of 12:01 a. m., March 28th.

Appellants posit that receipt occurred the morning of March 25,1978, when the application and the premium check were placed in the Bureau’s post office box or mail sack. Appellees contend the Bureau did not receive the application and the premium check until they reached the Bureau’s office March 27th. Appellants’ position is supported by 31A C.J.S. Evidence § 136, at 298 (1964) citing Cary v. Atlantic Mutual Insurance Co., 30 Misc.2d 299, 218 N.Y.S.2d 3 (Sup.Ct.1961), rev’d on other grounds, 16 A.D.2d 867, 228 N.Y.S.2d 345 (1962): “Where the addressee receives his mail in a post office box, delivery is deemed complete when the mail is delivered to the box regardless of when it is actually picked up by the addressee or his employees.”

The plaintiffs in Cary sought reformation of an automobile liability insurance policy underwritten by Atlantic Mutual. The plaintiffs’ decedents had been involved in an automobile accident and brought suit against a Mr. Kaczmarek, Atlantic Mutual’s alleged insured. Notice and an opportunity to defend were given to Atlantic Mutual. It, however, refused to defend and judgments were awarded to plaintiffs’ decedents which neither Atlantic Mutual nor Kaczmarek satisfied. Consequently, plaintiffs sued Atlantic Mutual. They contended .the court should judicially change the effective date of the insurance policy to 12:01 a. m., August 23, 1952, to furnish coverage for the plaintiffs’ decedents’ August 24th accident. Atlantic Mutual argued 12:01 a. m., August 26, 1952, was the effective date of the policy and should not be changed. The determinative question was: when precisely had Atlantic Mutual gone on the risk?

Because the court found “there were sharp issues of fact” on that question, it impaneled a jury to answer written interrogatories submitted to it after the parties presented evidence to support their conflicting positions. Id. at 301, 218 N.Y.S.2d at 6. According to the court, the evidence showed Kaczmarek was unable to obtain liability coverage through regular channels. Through a broker, he applied for coverage to the Automobile Assigned Risk Plan. Apparently the Risk Plan was similar in function to the Bureau in the present case.

The Risk Plan received the application and a cover letter August 15, 1952. Thereafter, Risk Plan typed and mailed a letter August 20th informing Atlantic Mutual, a member of the plan, it had two working days under the plan to issue a “ ‘policy or binder ... to become effective 12:01 A.M. on the day following the second working day following the effective date of the filing.’ ” Id. at 302, 218 N.Y.S.2d at 7. Atlantic Mutual argued that, regardless of the mailing date, it had not received the letter until Friday, August 22nd, thus giving it until Monday, August 25th, before it was required to issue the policy to Kaczmarek. This would have made 12:01 a. m., August 26th, the effective date of the policy or binder. That the letter from the Risk Plan was mailed to a street address, but the post office delivered it to Atlantic Mutual’s post office box according to its instructions, was undisputed.

The disputed facts were covered by the special interrogatories submitted to the jury. It answered them in the following manner: when had the Risk Plan letter 1) been typed? August 20th; 2) delivered to the post office? August 20th; 3) delivered to Atlantic Mutual’s post office box? August 21st; and 4) delivered to Atlantic Mutual’s office? August 22nd. The trial judge found sufficient evidence supported each of the jury’s answers and adopted them as his own. He also made the following findings crucial to Cary's resolution and directly relevant to the present case:

I find and decide that the delivery of the mail was complete when it was delivered to the post office box. If the court were to hold that delivery of the notice of assignment had to await the fulfilment of the trucker’s contract obligation [Atlantic Mutual used an independent contractor rather than one of its employees to pick up its mail from the post office box] to the addressee, the delivery could be subject to many delays for which the applicant for coverage should not be made to suffer.
... There is no provision [in the Assigned Risk Plan] which provides that a notice of assignment of a risk must be received in the mail room or office of the addressee before a delivery thereof is effected. In this case, I find and decide that the letter ... was delivered in accordance with the prior instructions issued by the defendant to the U. S. Post Office Department and that the date of such delivery to the P. 0. Box was Thursday, August 21, 1952.

Id. at 304, 218 N.Y.S.2d at 9. The court then concluded Atlantic Mutual had had two working days — August 21st and 22nd— to issue a policy or binder effective 12:01 a. m., Saturday, August 23, 1952. Its failure to do so required reformation of the policy and payment to the plaintiffs of the judgments against Kaczmarek up to the limits of his policy.

The appellate division reversed and ordered a new trial because the plaintiffs had failed to offer competent proof that the Risk Plan had mailed the notice of designation to Atlantic Mutual, making receipt on August 21st speculation. Cary v. Atlantic Mutual Insurance Co., 16 A.D.2d 867, 228 N.Y.S.2d 345 (1962). The new trial resulted in another judgment in favor of the plaintiffs. Thereafter, the appellate division summarily affirmed the judgment when Atlantic Mutual appealed. Cary v. Atlantic Mutual Insurance Co., 20 A.D.2d 758, 247 N.Y.S.2d 993, motion for leave to appeal denied, 14 N.Y.2d 485, 251 N.Y.S.2d 1025, 200 N.E.2d 219 (1964). This affirmance indicates the appellate division found no error in the original judgment granting reformation, money damages, and finding that delivery to the post office box began the two-working-day limit for issuance of the policy. See also Levy v. Massachusetts Accident Co., 124 N.J.Eq. 420, 2 A.2d 341 (1938), aff’d, 127 N.J.Eq. 49, 11 A.2d 79 (1940).

We are of the opinion that workmen’s compensation insurance coverage should not depend upon the contingencies that might occur after a binding agent is in possession and control of the application and the premium. We share the same concern expressed by the New York Court in Cary that the insured should not be penalized for delays that possibly could occur after the postal employees, pursuant to the Bureau’s instructions, deposited the application and the premium check in its Arlington Station Post Office box or sack. When Craven mailed the application and premium check to the Bureau, the binding agent, he was complying with directions it had provided on the application. Therefore, the insured should not have been denied coverage simply because the Bureau chose, for whatever reason, not to pick up its mail at the post office.

Accordingly, we reverse and remand with directions to enter judgment for appellants against Palm Beach Sanitation.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ., concur.

      . The order also granted summary judgment to defendant Lumbermen’s Mutual Casualty Company (Lumbermen’s) against Palm Beach and the remaining defendants. As Lumbermen’s points out, although only it filed an appellee brief (Palm Beach merely joined in that brief), this court cannot review the portion of the order granting Lumbermen’s motion for summary judgment because that portion of the order did not determine the issue of liability in favor of a party seeking affirmative relief as Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) requires.

      . The Bureau is an unincorporated association of insurance companies that designates insurers to accept workmen’s compensation policy applications on a rotating involuntary assigned risk basis.

      . Regarding the payment of a premium, the trial court in Levy said:
      The delivery to, and receipt by, the company, at its home office, would be made when the postal officials delivered it into the place which had been designated by the company for such delivery and receipt of mail addressed to its home office. In the instant case, defendant rented and maintained a private box at the Boston post office, into which, by its direction, the postal officials placed all incoming mail of the company addressed to it at its home office. Clearly delivery to the company would be valid and complete, by the placing of a letter so addressed, into that box, by the postal officials, just as much as if it had been delivered by a government letter carrier into the separate room in its office building... . 124 N.J.Eq. at 425, 2 A.2d at 345.

      . The anomalous position in which Palm Beach Sanitation is placed by this decision in light of the summary judgment in favor of Lumbermen’s is curable but not by this court in this proceeding because of Florida Rule of Appellate Procedure 9.130.


text:
    Lucille FERGUSON, Appellant, v. ESTATE OF Courtland D. FERGUSON, Appellee.
    No. 81-280.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Earl L. Maxwell, Jr., of Maxwell & Hill, West Palm Beach, for appellant.
    James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, Palm Beach, for ap-pellee.
   PER CURIAM.

This matter has been considered on motion to tax attorneys’ fees by appellee pursuant to Section 57.105, Florida Statutes (1980). The motion to tax attorneys’ fees is granted and the matter remanded to the trial court for determination as to the amount. After a thorough review of the briefs, the record on appeal, and the motions and arguments regarding attorneys’ fees, we conclude that this appeal presents a situation within the statute in that there is a complete absence of a justiciable issue of law or fact raised by appellant. This has been held to be the equivalent of frivolousness. See: Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980); rev. denied, 392 So.2d 1373 (Fla.1980); T. I. E. Communications v. Toyota Motors, 391 So.2d 697 (Fla. 3d DCA 1981); Sachs v. Hoglund, 397 So.2d 447 (Fla. 3d DCA 1981); and Galbraith v. Inglese, 402 So.2d 574 (Fla. 4th DCA 1981).

The sole issue raised on appeal in this probate matter was testamentary capacity. This issue was simply not included in the pleadings before the trial court or presented as a contested issue in the trial. Our Supreme Court has recently affirmed the constitutionality of the attorneys’ fee statute in question, and we believe the present situation is within the guidelines set in that decision. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). The Court there stated: “The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fee awards on losing parties who engage in these activities.” (Emphasis supplied).

This matter is remanded to the trial court. for determination of the amount of fees attributable to the appeal and for entry of judgment thereon.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    In re The ESTATE OF Miguel LOPEZ, Deceased.
    Nos. 81-486, 81-487.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied March 19, 1982.
    Joseph A. McGowan, Miami, for appellant Floridalma Solis-Lopez, individually and as the surviving widow of the decedent, Miguel Lopez.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellee Century Nat. Bank of Broward.
   PER CURIAM.

This is a consolidated appeal by the decedent’s widow from two orders entered by the trial court upon motions of the appellee personal representative. Appellee’s initial motion sought authorization to pay an attorney’s fee and costs as well as an appraiser’s fee with regard to real property in Guatemala. The second sought direction with respect to making payments on mortgages encumbering real property in Guatemala.

Appellant has demonstrated error as to the reasonableness of the attorney’s fee and the appraiser’s fee. The record does not disclose substantial competent evidence of the services performed by the attorney or appraiser nor the reasonable value of those services. Such evidence as to both elements is essential to an award for fees. Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). Therefore, we reverse the award of the attorney’s fee and appraiser’s fee and remand for further hearing.

Finding no error in the trial court’s order as to payments on the Guatemalan property, we affirm same.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.


text:
    Alan E. BRADY, Appellant, v. Erik A. JERSTED, et al., Appellees.
    No. 81-938.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Howard M. Zeidwig of Howard M. Zeid-wig, P.A., Fort Lauderdale, for appellant.
    Clark J. Cochran, Jr., of Hainline, Billing & Cochran, P.A., and Nancy Little Hoff-mann, of Nancy Little Hoffman, P.A., Fort Lauderdale, for appellee, City of Fort Lauderdale.
   PER CURIAM.

The trial court’s dismissal of plaintiff’s complaint with prejudice is affirmed. See Section 768.28(9), Florida Statutes (1980). Also see Rabideau v. State, 409 So.2d 1045 (Fla.1982).

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    Dorothy A. NEILSON, a single woman, Appellant, v. NARD'S, INC., a Florida corporation, Appellee.
    No. 81-1005.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Edward A. Perse of Horton, Perse & Ginsberg and Carroll, Halberg & Meyerson, Miami, for appellant.
    Martin J. Sperry of Krathen & Sperry, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed on the authority of Lonestar Florida, Inc. v. Cooper, 408 So.2d 758 (Fla. 4th DCA, 1982) (7 F.L.W. 210); MacArthur v. Travelers Insurance Co., 400 So.2d 20 (Fla. 4th DCA 1981).

DOWNEY and HURLEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Richard B. HARP, Petitioner, v. The Honorable Harry G. HINCKLEY, as Circuit Judge of the Seventeenth Judicial Circuit, and Captain Joseph Mullen, as Superintendent of the Pompano Juvenile Detention Facility, Respondents.
    No. 81-2066.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.

      Vincent R. Alto, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondents.
   ANSTEAD, Judge.

This is a petition for review of an order conditioning the petitioner’s pretrial release upon the posting of a $10,000 surety bond. At issue is whether the trial court may increase the amount of a bail bond required to be posted by a defendant for release before trial, for the purpose of restraining the defendant from committing future acts of misconduct. Immediately before the scheduled release of this opinion this appeal was rendered moot by virtue of the disposition of the petitioner’s case in the trial court. Nonetheless, we have elected to treat the issue because we find it to be a recurring issue of great importance to the public and the courts that has to date evaded resolution in an appellate opinion. See Walker v. Pendarvis, 132 So.2d 186 (Fla.1961).

Petitioner Richard B. Harp, a 16 year old juvenile, was arrested on October 6, 1981 and charged in the juvenile division of the circuit court with attempted armed robbery. After a hearing on October 19, 1981, the presiding juvenile judge ordered:

Court finds that child has no prior findings of guilt and has never missed a court appearance. The Court finds that the child does have extensive arrests, all of which have been finally disposed without findings of guilt. The Court further finds that the child is not a risk as to appearance but does present a danger to the community if released without bond. Bond is set at $2,500 on attempted armed robbery.

On October 20, 1981, petitioner’s mother, the mother of five other children and employed as a maid, paid the bond premium of $250 for the $2,500 bail bond to a bonding company, the bond was filed, and petitioner was released.

On October 26, 1981 the State of Florida filed an information in the criminal division of the circuit court based on the same alleged criminal episode, this time charging petitioner with attempted murder and possession of a firearm while engaged in a criminal offense. Both offenses are felonies of the second degree carrying a maximum penalty of fifteen years in prison and a $10,000 fine for each offense. At his first appearance in the criminal division, petitioner’s bond was set at $7,500.

At arraignment on November 5, 1981, petitioner was adjudged indigent and a special public defender was appointed to represent him. At this hearing the petitioner asserted that he resided permanently with his mother, and that upon his release on bail he had commenced employment with a lawn service, contacted his attorney daily, and helped in the preparation of his defense by personally contacting exculpatory witnesses. Petitioner’s counsel requested the trial court to reduce the amount of his bail bond to $2,500, the amount set by the juvenile court for the same criminal episode. The trial court rejected this request and, instead, increased the bond requirement to $10,000. At the hearing, the trial court did not dispute the findings of the juvenile judge that the petitioner did not constitute a risk as to appearance. On the contrary, the trial judge expressly stated that he was not concerned about petitioner appearing in court. Rather the trial judge candidly stated that he was setting bond at $10,000 in order to protect the community from the risk that the petitioner would engage in additional criminal activity if released. The petitioner was unable to post the higher bond and was incarcerated in the Pompano Juvenile Detention Center to await trial.

At first blush this case appears to present the fairly straightforward question of whether the trial court abused its discretion in determining that a bail bond of $10,000 was necessary to secure the petitioner’s subsequent appearance in court. And, in view of the charges filed against the petitioner and the broad discretion vested in the trial court to determine what security is necessary to secure petitioner’s presence, we might ordinarily have approved the bond here despite petitioner’s indigency and inability to post such a bond. However, the trial judge candidly and repeatedly stated on the record that the decision to increase the amount of the bail bond was not predicated on any concern as to petitioner’s subsequent appearance in court, but rather was predicated on a concern that petitioner constituted a risk to the community at large because of a pattern of repetitive criminal conduct.

In the face of the trial court’s express statements we would be remiss if we did not address the issue of whether a trial court may use bail to detain the petitioner for the purpose of preventing him from committing further criminal acts in the community, a question not expressly discussed in any Florida decision cited by the parties or revealed by our own research. We conclude that in Florida bail may not be used for purposes of preventive detention before trial and that, even if it could be, the record in this case would not support a finding that such detention was necessary.

The United States Supreme Court has held that the function of bail is ordinarily limited to securing the defendant’s presence in court:

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 1835, 9 Pet. 704, 710, 9 L.Ed. 280. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “excessive” under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926), opinion by Mr. Justice Butler as Circuit Justice of the Seventh circuit).
Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.

Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951). These same principles of federal law are embodied in the provisions of Article I, Section 14 of the Florida Constitution (1968) and Rule 3.130(b)(4)(i) of the Florida Rules of Criminal Procedure.

Article I, Section 14 grants and guarantees the right of pretrial release on reasonable bail to all accused persons other than those charged with a capital offense or an offense punishable by life imprisonment. State v. Arthur, 390 So.2d 717 (Fla.1980). The pretrial release of such persons is further governed by the provisions of Florida Rule of Criminal Procedure 3.130. Rule 3.130(b)(4)(i) expressly provides that the “purpose of bail is to insure the defendant’s appearance.” Rule 3.130(b)(4)(iii) sets out the factors to be considered by the trial court in setting the terms of pretrial release:

In determining which form of release will reasonably assure appearance, the judge shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant’s family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

Rule 3.130(b)(4)(i) does not authorize bail to be utilized as a means of preventive detention. Nor does Rule 3.130(b)(4)(iii) authorize a consideration of the likelihood of the accused committing subsequent crimes upon release as a factor to be considered in setting the amount of a bail bond. Rather, Rule 3.130(b)(4)(i) expressly provides that the exclusive purpose of bail is to insure the defendant’s appearance in court to answer the charges against him.

The vast majority of cases dealing with this issue in other states having constitutional provisions on bail similar to those contained in Article I, Section 14, hold that the utilization of bail for purposes of preventive detention is improper. State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); In re Underwood, 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721 (1973); Martin v. State, 517 P.2d 1389, 75 A.L.R.3d 941 (Alaska 1974); State v. Pray, 133 Vt. 537, 346 A.2d 227 (1975); and Petition of Humphrey, 601 P.2d 103 (Okla.Cr. 1979); Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979). Anno: Pretrial Preventive Detention, 75 A.L.R.3d 956. The rationale of these holdings and the underlying conflict giving rise to this issue has been pinpointed by the Supreme Court of Vermont:

This case is illustrative of the conflict between the constitutional entitlement to bail and the public’s concern that persons with apparently dangerous propensities should be allowed to be unconfined. But the constitutional provision for bail is a necessary corollary to our concept that persons may be imprisoned only after proper conviction of crime.

State v. Mecier, 388 A.2d 435 at 437 (Vt.1978). In other words punishment by incarceration is prohibited, as to both the charge presently pending and those that might possibly be committed by the defendant in the future, until after the accused has been tried and convicted. In our view the reasoning of these cases is compelling and we conclude that under the express provisions of Article I, Section 14 and Rule 3.130(b)(4)(i) bail may not be used for the purposes of pretrial preventive detention.

We also recognize that the state has a legitimate interest in protecting the community from those who repeatedly engage in criminal misconduct, including those who engage in such conduct while on pretrial release from pending charges. However, because the purpose of bail is limited and the right to pretrial release guaranteed by our constitution, courts are not free to fashion their own remedies for this problem out of the provisions relating to bail.' The problem has been addressed in a variety of ways. Some cases have recognized the authority of the legislature to enact pretrial detention laws narrowly drawn to deal with those who have evinced a flagrant disregard for the law and the legal process. Blunt v. United States, 322 A.2d 579 (D.C.Ct. of Appeals 1974). Other cases have recognized a narrow exception to the ban on pretrial preventive detention in cases of national security or imminent threat of danger to a witness in the pending case. Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); United States v. Gilbert, 425 F.2d 490 (D.C.Cir. 1969); Anno: Pretrial Preventive Detention, 75 A.L.R.3d 956. However, for the most part, repeat offenders are dealt with by habitual offender statutes such as Section 775.084, Florida Statutes (1981), which impose substantially greater penalties on chronic offenders. Other laws permitting detention of persons found to constitute an imminent danger to themselves or others or permitting detention of juveniles found to be chronic delinquents also serve a preventive purpose. See Chapters 394 and 39, Florida Statutes (1981). Our holding today does not deal with the authority of the legislature to protect the community by these various means. There is, of course, no preventive detention statute in Florida, and we have been cited to no authority that would allow preventive detention on the basis of a record consisting of a prior acquittal and other arrests resulting in no adverse court action.

On the other hand, the trial court may properly consider the defendant’s respect for the law, including evidence of past criminal conduct, in determining what conditions to impose upon the defendant’s pretrial release in order to secure the defendant's appearance. If the trial court reasonably determines, based upon a consideration of evidence of the factors set out in Rule 3.130(b)(4)(iii), including the defendant’s character and record of past convictions, that a bail bond if a certain amount or other conditions are necessary to assure the defendant’s appearance, then such bond or conditions will be upheld. However, the trial court is not authorized to utilize bail for purposes other than to secure the defendant’s appearance. It is one thing to utilize evidence of the past misconduct of a defendant for the purpose of determining what conditions are necessary to secure a defendant’s appearance and quite another to utilize pretrial incarceration or bail as a means to prevent possible future misconduct by the defendant.

By and large, our system of criminal justice deals with crime, and those who commit crime, only after the fact. Preventive measures, especially those that involve involuntary detention, have generally been sharply limited to situations involving real and imminent peril to the detainee or others. This general scheme of punishment after the fact is, of course, predicated on our basic belief that a person should be presumed innocent and should not lose his liberty until after he has been tried and convicted of criminal conduct. These basic beliefs, and our adherence to them, have stood us in good stead for a long time and are part of the basic constitutional underpinnings which distinguish our form of government from most others. In times of stress, however, such as that produced by sharp increases in criminal activity and our frustration in dealing with the problem generally, or in dealing with a particular individual, we tend to overlook or question these basic beliefs in our anxiety to resolve the immediate problem. In most instances we resist these tendencies and work pur way through the problems. In others we might seek constitutional or legislative action to change the basic precepts we now find restrictive. In any case, however, so long as these concepts remain a part of our constitutional scheme, we are powerless to ignore their mandate. So it is that in this case we must honor the right of pretrial release on reasonable bail mandated by our state constitution.

Accordingly, for the reasons set out above, we hold that the trial court was in error in increasing the amount of the bail bond required to be secured by the petitioner for purposes of preventive detention. However, because the issue has been rendered moot by reason of the final disposition of petitioner’s case in the trial court, we deny the petition.

In addition, because we believe this issue is clearly one of great importance, not only to the legal community, but also to the public at large, we hereby certify the following question to the Florida Supreme Court:

MAY A TRIAL COURT CONSIDER THE PROTECTION OF THE COMMUNITY AT LARGE FROM FUTURE POSSIBLE ACTS OF MISCONDUCT BY THE DEFENDANT IN DETERMINING THE AMOUNT OF A BAIL BOND TO BE POSTED BY THE DEFENDANT AS A CONDITION OF HIS PRETRIAL RELEASE?

DOWNEY and HERSEY, JJ., concur.

      . Pursuant to a plea agreement, the petitioner entered a plea of guilty to a misdemeanor charge of simple battery for which he was placed on six months probation, and all other charges were dismissed.

      . Apparently the trial court concluded that the petitioner would be unable to post the higher bond, and hence the community would be protected by his continued incarceration. Otherwise, we fail to see how the setting of the higher bond would protect the community since such bond is issued only to secure the petitioner’s subsequent appearance in court.

      . Under this constitutional provision it has been held that the right to release on reasonable bail is secured even to those who are established bad risks. Gardner v. Murphy, 402 So.2d 525 (Fla. 5th DCA 1981). We do not have that issue before us and therefore express no view on the problem thus facing a trial judge who is convinced by the evidence that a defendant will run no matter what conditions are imposed. Of course the conditions for release of those who are obvious bail risks may be much more stringent than those set for persons who are not. And bail may be revoked if the conditions imposed are violated. Id.

      . We are of the view that the trial court may impose conditions of good behavior upon the grant of pretrial release to a defendant and may subsequently revoke bail if such conditions are not honored. See Rules of Criminal Procedure 3.130(b)(4) and 3.130(h). Some decisions have suggested that the intelligent use of such conditions to monitor the defendant’s pretrial conduct may also incidentally serve the purpose of preventing the defendant from engaging in continued misconduct. See People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837 (1975).

      . One panel of the United States Fifth Circuit has expressly stated that Florida trial courts are without authority to utilize bail for purposes of preventive detention:
      The State also has an interest in denying pretrial release to a defendant who presents an unreasonable danger to the community. [Citations omitted.] However, the State may not use bail to serve this end.

        Pugh v. Rainwater, 557 F.2d 1189 (1977). Upon en banc reconsideration of the same case, the full court expressly declined to comment on this issue. Pugh v. Rainwater, 572 F.2d 1053 (1978).

      . There is no right to bail after conviction. Accordingly, the legislature’s right to limit bail after conviction has been upheld. Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981). We have also held that a trial court may properly consider the likelihood of defendant’s committing other offenses in considering bail pending appeal. Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968).


author: DELL, Judge.

text:
    STATE of Florida, Petitioner, v. Mitchell and Randye KEITZ, Respondents.
    No. 81-2357.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Joseph A. Varón of Varón & Stahl, P. A., Hollywood, and Burford & Still, P. A., West Palm Beach, for respondents.
   DELL, Judge.

The State, by petition for a writ of certio-rari, seeks review of a protective order which prohibits the prosecution from questioning Kari Swayman Keitz, a three year old child. The petition for writ of certiorari is granted.

Briefly stated, this petition arises from a first degree murder investigation and prosecution. The victim was divorced and had been involved in a bitter custody battle with his ex-wife, Randye Keitz, and her new husband, Mitchell Keitz. The court, in the dissolution proceeding, granted custody of Kari Swayman Keitz to the mother. The victim was allowed limited visitation privileges on weekends and desired to visit his daughter on the weekend of his death. Randye Keitz told him that he could not see his child because she was ill. He subsequently learned that his daughter was not ill and obtained visitation with her from his ex-wife only after an argument. The victim was to return his daughter in the early evening hours on the day of his death, and then to meet a previously scheduled appointment. He never showed up for his appointment. Subsequent investigation of the Keitz’s home revealed evidence indicating that a beating had occurred. Indictments were brought against Randye and Mitchell Keitz.

The prosecution, pursuant to Section 27.-04, Florida Statutes (1979), issued a subpoena to Kari Swayman Keitz. The co-defendant, Randye Keitz, as mother and natural guardian of Kari Swayman Keitz, petitioned the court for an order quashing the subpoena. The trial court ordered the child, because of her tender age, to be examined by a child psychiatrist to determine whether or not she might suffer possible mental or emotional damage as a result of any questioning that might take place regarding the events surrounding the death of her father. She was examined on three separate weeks by Antonio S. Fueyo, a child psychiatrist.

The court, after receipt of a letter summarizing the examinations conducted by Dr. Fueyo, conducted a hearing on the motion for protective order. The prosecution stated that it wished to ask only limited questions, e.g., what she did with her father on the day in question, where they ate, when her father took her home, who was there when her father took her home and whether or not there were any loud noises that took place once she got home. The prosecution represented that the importance of investigating these limited areas with Kari Swayman Keitz was directly relevant to an alibi defense raised by the co-defendant, Randye Keitz, who is the party seeking the protective order for the child.

Dr. Fueyo testified that the questions proposed by the prosecution would not harm the child but went on to state that the questions would not be meaningful to her. A letter written by Dr. Fueyo was introduced into evidence wherein he stated that he strongly believed that inquiries about the death of her father would be fruitless and any questioning or insistence on answers to such questions could result in harm to the child and could outweigh any benefit that law enforcement could have. Dr. Fueyo’s evaluation of the benefit to law enforcement is not material, but his opinion as to the possible harm to the child is relevant and was obviously material to the court when it prohibited the taking of the child’s statement.

We appreciate the trial court’s concern for the welfare of the child. It appears, however, that there is no evidence that the questions which were proposed by the State would be harmful to the child even though the answers to those questions might not be meaningful to her and her answers may not be reliable. We find that the trial court properly perceived the need for protecting the interests of the child, but that it exceeded its authority when it prohibited the taking of any statement from the child, even under controlled circumstances calculated to protect the child from any mental or emotional harm.

In, State, Office of State Attorney for 20th J. C. v. Sievert, 312 So.2d 788 (Fla. 2nd DCA 1975), the Court permitted the taking of a statement of a nine year old child, notwithstanding testimony by a physician that any questioning of her by the state attorney could have a profound psychological effect upon her since she was in the process of recovering from an emotional trauma. The State had argued that the court was without authority to stipulate conditions under which the minor could be interrogated. In the instant case, the State proposed controlled circumstances and offered to stipulate to the limited nature of the questions which would be asked.

We believe that the trial court erred when it prohibited the taking of the child’s statement. The trial court should have granted the State’s request to take the statement under the supervision of the trial court or the psychiatrist and limited the questions to those proffered by the State.

Accordingly, certiorari is granted and the trial court’s order prohibiting the interrogation of Kari Swayman Keitz is quashed. This matter is remanded to the trial court for entry of an order permitting limited interrogation of Kari Swayman Keitz under conditions which will accommodate the state’s duty to investigate crime and yet protect the best interest of the child.

DOWNEY and HURLEY, JJ., concur.


author: OTT, Judge.

text:
    The AMERICAN DRUGGISTS' INSURANCE COMPANY, Appellant, v. STATE of Florida and Rose Bubucha, Appellees.
    No. 80-1122.
    District Court of Appeal of Florida, Second District.
    March 3, 1982.
    Philip N. Hammersley of Trawick & Grif-fis, P. A., Sarasota, for appellant.

      Patrick T. Maguire, Asst. County Atty., Clearwater, for appellees.
   OTT, Judge.

Appellant posted four $5,000 bail bonds for a client who had been charged with various crimes. Each bond contained this notation on its face: “This bond not valid for presentence investigation unless authorized by Surety.”

The client later appeared and entered pleas of nolo contendere to each charge, whereupon the court withheld adjudication, ordered a presentence investigation, continued the matter for sentencing, and let the client remain at liberty on the same bail bonds. Appellant’s authorization for this action was not obtained. When the client failed to appear for sentencing, the court forfeited the bonds.

Appellant contends that the bonds were automatically canceled when the lower court failed to obtain proper authorization as provided in the agreement. For the following reasons, we disagree and affirm the actions of the lower court.

At the time of the proceedings below, section 903.31, Florida Statutes (1979), read as follows:

When the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond canceled. Conviction or acquittal of the defendant will satisfy a bond unless the court otherwise provides in the judgment. (Emphasis added.)

The 1970 Legislative Committee comment to this section found at Ch. 70-339, § 36, Laws of Fla., provides:

The ... section makes conviction or acquittal satisfaction of all undertakings rather than limiting it to those written by bondsmen ....

Subsequently, Accredited Surety and Casualty Co., Inc. v. State, 318 So.2d 554 (Fla. 1st DCA 1975), held that the words “conviction” (or acquittal) required the entry of an order of adjudication of guilt (or innocence) and was not met by the mere entry of a guilty plea or return of a jury verdict.

Thereafter, in 1980, the statute was amended to read as follows:

When the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond canceled. An adjudication of guilt or innocence of the defendant shall satisfy the conditions of the bond. The original appearance bond shall not be construed to guarantee deferred sentences, payment of fines, or attendance at educational or rehabilitation facilities the court otherwise provides in the judgment. (Emphasis added.)

We construe this statute to mean that a bond can only be automatically canceled as a matter of law when there is either an adjudication of guilt or innocence. This achieves a desired goal of uniformity and helps preserve the function of bail which is to secure the attendance of the accused to answer the charge against him.

A terminating provision such as the one sub judice may have some efficacy, at least as between the client and bonding company, but we conclude that it does not effect an automatic termination of the bond obligation to the state, or the court. We feel that a bail bondsman has an obligation to be present in court and produce his client whenever the condition is satisfied or the case is up for further consideration or disposition. The bonding company or bondsman must apprise the court of any special condition or objection to continuation of the bond. An order of discharge must be obtained on the satisfaction of all bond conditions or restrictions other than those specifically approved in section 903.31, Florida Statutes (1981). The court may impose reasonable requirements before entering such order of discharge as, for example, the production of the accused before the court.

The judgments of estreature are AFFIRMED.

SCHEB, C. J., and RYDER, J., concur.


author: PER CURIAM. BERANEK, J.,

text:
    CITY OF HALLANDALE, Appellant, v. ACMAR ENGINEERING CORP., etc., et al., Appellees.
    No. 81-932.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Steven L. Josias, Fort Lauderdale, and John G. Fletcher, South Miami, for appellant.
    Ira M. Elegant of Buchbinder & Elegant, P.A., Miami, and Marion E. Sibley of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellees.
   PER CURIAM.

AFFIRMED.

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

BERANEK, J., dissents with opinion.

BERANEK, J.,

dissenting:

I respectfully dissent. I believe the trial court erred in denying appellant’s request to further plead in response to an amendment of the appellee’s complaint shortly before trial.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    FLORIDA DEPARTMENT OF CORRECTIONS, self-insured, and Crawford & Company, servicing agent, Appellants, v. Victor J. CARRO, Appellee.
    No. AB-382.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Ivan Matusek, St. Petersburg, for appel-lee.
   THOMPSON, Judge.

The employer/carrier (E/C) challenge a workers’ compensation order, contending in part that the deputy commissioner (deputy) erred by awarding claimant a 10% permanent partial disability (PPD) rating when 5% was the greatest anatomical disability rating given the claimant by an examining or treating physician. We agree and reverse.

The claimant was involved in a compen-sable vehicular accident on January 12, 1978. In addition to filing a workers’ compensation claim for PPD benefits,, the claimant filed a civil suit against the third party tortfeasor involved in the vehicular accident.

Dr. Goldsmith, a psychologist, gave the claimant a 5% PPD rating for the body as a whole. After Dr. Wallace, an orthopedic surgeon, also gave the claimant a 5% PPD rating, the E/C accepted the 5% PPD rating and commenced payment of these benefits. Subsequently, claimant’s motion to voluntarily dismiss his workers’ compensation claim was granted without prejudice over the objection of the E/C.

The claimant’s lawsuit against the third party tortfeasor was settled and the E/C’s § 440.39, Fla.Stat. lien was satisfied. The claimant then refiled a claim for additional PPD benefits. The deputy concluded that the claimant’s headaches had interfered with his “life style and his work activities more than contemplated by Dr. Wallace and Dr. Goldsmith when they gave their ratings in 1979.” Based on his experience with people having 5% and 10% disability ratings, the deputy observed that claimant’s condition more closely resembled that of persons having a 10% disability than of those having a 5% disability. Although the deputy found that the claimant had sustained a 10% permanent physical impairment of the body as a whole, he further found: “He has sustained no wage earning impairment as a result of the industrial accident.” (e.s.)

Subsection 440.15(3)(u), Fla.Stat. (1977) which was in effect at the time the claimant sustained his accident provides:

Other cases: In all other cases in this class of disability the compensation shall be 60 percent of the injured employee’s average weekly wage for such number of weeks as the injured employee’s percentage of disability is of 350 weeks; provided, however, that for the purpose of this paragraph “disability” means either physical impairment or diminution of wage-earning capacity, whichever is greater. (e.s.)

The deputy specifically found that there was no diminution of wage-earning capacity. Therefore, the PPD rating must be based only upon the anatomical impairment sustained. City of Tampa v. Morales, 384 So.2d 911 (Fla. 1st DCA 1980). The deputy erred in awarding 10% PPD since 5% was the greatest physical impairment rating given the claimant by an examining or treating physician.

Accordingly, the order appealed is amended so as to award compensation for a 5% PPD and, as amended, is AFFIRMED.

MILLS, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I agree with the unarticulated but apparent conclusion of the majority that § 440.-25(3)(b), Florida Statutes, is a procedural statute applicable to the order in this case, based on an accident antedating the statutory restraint on impairment awards in excess of physicians’ ratings. Jones v. Plantation Foods, 388 So.2d 590. (Fla. 1st DCA 1980), concurring opinion, cf. National Linen Service v. Stubblefield, 403 So.2d 1147 (Fla. 1st DCA 1981); Colonial and Semoran Shell Service v. Grissom, 389 So.2d 1219 (Fla. 1st DCA 1980); Bell Rentals & Sales v. Harvey, 387 So.2d 507 (Fla. 1st DCA 1980). I respectfully dissent, however, to the amendment of the order and would, in spite of the statute, affirm the 10% impairment award.

The two specialists’ ratings in this case were rendered in isolation so as to leave to the deputy the determination of whether the 5% psychiatric and 5% orthopedic disabilities, though not necessarily to be aggregated arithmetically, must still be regarded as supporting a cumulative body-as-a-whole rating higher than either rating alone. The 10% award, based on the cumulation of the separate impairment ratings, should therefore be affirmed.