text:
    Marilyn JARIS, Personal Representative of the Estate of Louis Tucker, Deceased, Appellant, v. Ann R. Adams TUCKER, Appellee.
    No. 81-915.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.

      Leonard E. Zedeck and Adam Kurlander, North Miami Beach, for appellant.
    John F. Harkness, Young, Stern & Tan-nenbaum and Glen Rafkin, North Miami Beach, for appellee.
    Before HUBBART, C. J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

A panel of this court having concluded that a court is empowered to render a nunc pro tunc judgment of dissolution after the death of one of the parties, we granted the appellee’s motion for rehearing en banc because this conclusion creates a lack of uniformity with this court’s decision in Leitner v. Willaford, 306 So.2d 555 (Fla. 3d DCA 1975). See Fla.R.App.P. 9.330(a); Puga v. Suave Shoe Corp. (Fla. 3d DCA 1982) (Case No. 81-187, opinion filed June 1, 1982). Upon consideration en banc, we hold that a court is not empowered to render a nunc pro tunc judgment of dissolution after the death of one of the parties.

On October 27, 1980, at the final hearing in the marriage dissolution proceedings between Ann Tucker and Louis Tucker, the trial court orally pronounced its judgment:

“The Court has examined the file, considered the evidence before it and has been made aware that the respondent counter-petitioner husband is presently in Intensive Care at the hospital suffering from the disability of cancer and the removal of his larynx.
“The Court having heard the testimony of the petitioner and her witness and having considered the stipulations of the parties concerning the marital property has jurisdiction of the parties and subject matter hereto, finds the marriage to be irretrievably broken and dissolves the marriage.
“In accordance with a stipulation, the property is to be registered with a real estate broker and the home sold. The net proceeds of the sale are to be divided equally between the parties.
“The Court will reserve jurisdiction of the parties and subject matter hereto for the purpose of the enforcing and the carrying out of the terms and conditions of the stipulation for the sale of the home as well as reserving jurisdiction for the purpose of determining the ownership of certain personal property located within the marital home for which the wife has made a claim for numerous articles of furniture and furnishings therein.
“The parties have agreed that the respondent husband’s attorney shall submit to the petitioner wife’s attorney a list of those items of personal property in the marital home which the husband has claimed as his separate property; it being noted that the wife’s attorney has already furnished to the respondent’s attorney a list of that property that the wife is claiming as her separate property.
“The Court being aware that counsel attempted to stipulate on the division of the property — by reason of the sale of the marital home, the petitioner wife has withdrawn her demand or request for sole and exclusive possession of the marital home and for award of the marital home by way of alimony.
“The respondent husband and counter-petitioner has withdrawn by announcement of his attorney the counter-petitioner husband’s demand for a special equity in the home.
“Each party shall bear their own attorneys fees and costs.
“The parties have agreed that all stock evidenced by stock certificates or stock records of brokerage firms showing certain stocks resting in the joint names of the parties — The parties have agreed that such stock will be sold and the proceeds equally divided.
“Such stock registered or listed in the name of either of the individual parties, the parties are agreeing will become the sole property of that individual party-”

The court instructed the husband’s counsel to prepare and submit the written final judgment. Four days later, before the prepared written judgment was delivered to the court for signing, Louis Tucker died. Thereupon, Ann Tucker moved to abate the dissolution proceeding. The trial court granted the motion and dismissed the cause upon a finding that Louis Tucker expired prior to the signing of a final judgment of dissolution of marriage. Louis Tucker’s personal representative appeals.

The personal representative contends that the trial court’s oral pronouncement dissolving the marriage was effective to terminate the marriage before Mr. Tucker’s death. She recognizes that a final judgment of dissolution is not effective until it is reduced to writing and signed by the court. She says, however, that where a court, as here, has orally pronounced its decision on the matters submitted to it for adjudication and unequivocally expressed its intention that that decision be incorporated in the written judgment, the court is empowered to enter the written judgment nunc pro tunc as of the day it was orally pronounced.

It is true that in the ordinary case the death of a party does not deprive a court of the power to enter a post-mortem nunc pro tunc judgment. Becker v. King, 307 So.2d 855, 858 n. 2 (Fla. 4th DCA 1975). However, this general principle does not apply to actions to dissolve a marriage, since the death itself has already terminated the marriage. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); McKendree v. McKendree, 139 So.2d 173 (Fla. 1st DCA 1962); see Leitner v. Willaford, supra; cf. Baggett v. Baggett, 309 So.2d 223 (Fla. 2d DCA 1975); Becker v. King, supra (where written final judgment dissolving marriage entered prior to death of one party, court can enter nunc pro tunc judgment respecting other matters which it had theretofore orally decided).

“[The rule] is to the effect that a ‘Nunc pro Tunc’ decree cannot be entered where one of the parties to a divorce dies before the rendition of a Decree.
“Obviously there can be no judgment of divorce rendered after the death of either of the parties, since that event of itself terminates the status of marriage. Consequently where a party to a divorce suit dies before the rendition of a decree, none can be entered.” Sahler v. Sahler, supra, 154 Fla. at 210, 17 So.2d at 107.

This is still the law of this state and controls the case before us.,

Affirmed.

      . Upon the grant of rehearing en banc, the panel opinion was vacated.

      . A nunc pro tunc judgment must, of course, relate back to a decision actually made and cannot be a judgment that had not theretofore been pronounced. Ellis v. State, 100 Fla. 27, 129 So. 106 (1930); Becker v. King, 307 So.2d 855 (Fla. 4th DCA 1975).

      . While Sahler does not stand alone in declaring that there can be no post mortem nunc pro tunc divorce decree, see, e.g., Black v. Industrial Commission of Arizona, 83 Ariz. 121, 317 P.2d 553 (1957); Larson v. Larson, 89 S.D. 575, 235 N.W.2d 906 (1975); Richmond v. Richmond, 326 Ill.App. 234, 61 N.E.2d 573 (1945), other courts have taken less absolute positions. See, e.g., Roeder v. Roeder, 103 Wis.2d 411, 308 N.W.2d 904 (Wis.Ct.App.1981) (oral pronouncement of divorce sufficient to dissolve marriage); Mabry v. Band, 203 Okl. 212, 219 P.2d 234 (1950) (same); In re Tabery, 14 Wash.App. 271, 540 P.2d 474 (1975) (entry of nunc pro tunc divorce decree after case orally and fully adjudicated and death of party within court’s inherent power to be used as justice may require); Tiedman v. Tiedman, 400 Mich. 571, 255 N.W.2d 632 (1977) (where oral pronouncement contemplates later entry of written judgment, written judgment cannot be entered nunc pro tunc; but oral judgment declared as the final judgment is sufficient to dissolve marriage); Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) (oral judgment sufficient where state rule provides that oral judgments are valid).

      . See note 4 on page 1167.

        4. It is true that in Sahler, the oral pronouncements of the court were tentative, and in McKendree, the court specifically reserved ruling and contemplated further argument on the matter submitted to it for adjudication. Although it can be argued that these cases are factually distinguishable from the present one in which a certain and definite oral disposition was made, that certainty and definiteness is immaterial where, as Sahler so absolutely declares, a post-mortem nunc pro tunc decree cannot, in any event, be entered.

      . See note 5 on page 1167.

        5. We fully recognize that our holding gives Mrs. Tucker, a sixty-two-year-old woman married for eighteen months to a seventy-seven-year-old man, the status of widow with its attendant property rights, a result which the dissolution proceedings obviously sought to prevent. This ostensibly harsh result and the impact of Sahler can, however, be avoided by the simple precaution of having the court enter a written final judgment dissolving the marriage at the conclusion of the final hearing, leaving all other decided matters for a subsequent nunc pro tunc judgment. See Baggett v. Baggett, supra; Becker v. King, supra.


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge.

license: Public Domain

text:
    EMERY AIR FREIGHT, a Delaware corporation authorized to do business in the State of Florida, Appellant, v. Alex CORNIL, Appellee.
    No. 81-738.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.

      S. Edward Groot of Druck & Groot, Oca-la, for appellant.
    Charles Ruse, Jr. of Charles Ruse, Jr., P.A., Ocala, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Emery Air Freight appeals from a judgment in favor of Cornil for damages to a shipment of chocolate consigned to Cornil.

The goods were shipped by Emery from Belgium to Atlanta via New York. From Atlanta to Orlando, the goods were handled by Benton Brothers. From Orlando to Cor-nil’s place of business in Ocala, the shipment was moved by Mr. Air Freight of Orlando, Inc.

The first question raised by Emery is whether the court erred in finding the goods were delivered in a damaged condition.

A carrier is liable under 49 U.S.C. § 11707 (1978) for damages to goods transported by it unless it can show that the damage was caused by an act of God, the public enemy, the act of the shipper, public authority, inherent vice or the nature of the goods. Missouri Pacific R. Co. v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964); Federated Dept. Stores v. Brinke, 450 F.2d 1223 (5th Cir. 1971). If the goods leave the shipper’s hands in good condition and arrive at their destination in damaged condition, a presumption arises that the carrier was negligent and responsible. The burden is then on the carrier to show both its freedom from negligence and that the damage was due to one of the excepted causes relieving the carrier of liability. Missouri Pacific R. Co., 84 S.Ct. at 1145.

Evidence concerning the condition of goods upon delivery was conflicting. The driver for Mr. Air Freight, who delivered the shipment, testified that he received the shipment in good order, that he unloaded all the cartons and did not observe any damage such as that on the cartons in evidence, that neither Cornil nor anyone else at the location made a complaint about the goods and that he witnessed Cornil’s signature on the waybill. In contrast, Cornil and his son testified that at least half of the boxes were damaged and soiled, that some of the boxes, even those which appeared undamaged, contained broken glass jars, that the lids of other jars were opened and pieces of glass were inside the containers. Cornil further testified that the entire shipment was unfit for human consumption.

When a trial judge sits as a trier of the facts as is the case here and has an opportunity to observe the witnesses, their demeanor, candor or the lack of it, he must determine whether the testimony of such witnesses is worthy of belief. His determination will not be disturbed on appeal. See, e.g., Firstamerica Develop. Corp. v. County of Volusia, 298 So.2d 191 (Fla. 1st DCA 1974). Implicit in the final judgment in favor of Cornil is the trial judge’s determination that the goods were delivered in a damaged condition. The evidence as outlined above was sufficient to support this determination.

The next question presented is whether the trial court erred in the assessment of a fifty percent penalty under sections 353.01 and 353.02, Florida Statutes (1981). The judgment awarded Cornil $7,568.42 and provided for the accrual of interest on the principal sum at the rate of fifty percent per annum.

Section 353.01 provides as follows:

All common carriers operating within this state when any person, his agent or attorney, files with, or presents to them, or any station agent of said common carrier, or where there is no station agent, upon any other agent of such common carrier, his claim for any freight, baggage or express lost or damaged by said common carrier, or for any overcharge made by such common carrier on any freight, baggage or express, or for any reciprocal demurrage, shall pay the said claim within sixty days from its filing with, or presentation to, said common carrier or any station agent, or other agent of such common carrier.
Section 353.02 provides in relevant part: Should any common carrier fail to comply with the provisions of § 353.01 [pay claims within 60 days] then the said common carrier ... shall be liable to the claimant for the amount of his claim and fifty percent per annum interest on the principal sum....

In Fornel v. Florida East Coast Ry. Co., 65 Fla. 102, 61 So. 194 (1913), the supreme court held that a shipment of property cannot be regarded as both intrastate and interstate. It must be deemed and held to be one or the other. The court further held that the statutory interest penalty and attorney’s fees provisions (then chapter 5618) were confined to intrastate shipments. Fornel, 61 So. at 197. See also Allied Van Lines v. Brewer, 258 So.2d 496 (Fla. 2d DCA 1972), wherein the court held that sections 353.01 and 353.02 do not apply to interstate shipments.

The shipment in the present case was clearly interstate in nature. As sections 353.01 and 353.02 do not apply in this case, the judgment assessing the interest penalty must be REVERSED and the cause REMANDED for reconsideration under the applicable federal provisions.

AFFIRMED in part and REVERSED in part.

DAUKSCH, C. J., and COWART, J., concur.

      .. The Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), was recodi-fied without substantive change at 49 U.S.C. § 11707 on October 17, 1978. Turner’s Farms, Inc. v. Maine Cent. R. Co., 486 F.Supp. 694, 695 n.1 (D.Me.1980).

      . In its brief, Emery has not challenged the award of attorney’s fees to Cornil.


author: ORFINGER, Judge.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant/Cross Appellee, v. Robert E. JONES, Appellee/Cross Appellant.
    No. 81-880.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.

      J. Craig Corbett of Parker, Johnson, Owen & McGuire, Orlando, for appellant/cross appellee.
    James W. Sears of Butler, McDonald, Moon & Sears, P.A., Orlando, for ap-pellee/cross appellant.
   ORFINGER, Judge.

The sole issue for determination in this appeal is whether there was sufficient competent evidence presented upon which the trial judge could base his finding that the insured had been offered uninsured motorist coverage equal to his liability coverage, but had knowingly rejected those limits and had accepted a lower limit. We affirm.

At trial, the court had before it an application for insurance signed by appel-lee, providing for coverage for bodily injury liability of 25/50 and for uninsured motorist coverage of 15/30. Although imperfectly completed, the reference to 15/30 coverage in two places on the signed application is sufficient evidence of appellant’s request for that coverage. What it does not decide is whether the appellant was offered this uninsured motorist coverage in the amount of his liability coverage, and knowing that he could purchase that amount, knowingly selected lower limits. The application, by itself, is not evidence that the higher limits were offered. See American Motorists Insurance Co. v. Weingarten, 355 So.2d 821 (Fla. 1st DCA 1978).

The policy had been issued three years prior to the trial, and while the agent who sold appellant the policy admitted that he could not recall the specific language of the conversation with appellant (an understandable situation although he remembered the transaction), he testified that he always, as a matter of routine, discussed uninsured motorist coverage with every insured, advised them that they had the right to purchase this coverage in an amount equal to their liability limits and gave the customer the right to accept that amount or reject that and purchase a lesser amount. He emphatically stated that he always followed this procedure with each customer, and that he was certain that he had followed that procedure in this case, and had offered appellant uninsured motorist coverage in an amount equal to his liability limits. Appellant denied that he had been informed of his right to purchase the higher limits.

Over objection, the trial court admitted the testimony of the insurance agent’s invariable practice, and the admissibility of that testimony is the critical issue here, because without it, there would be no competent evidence that the higher limits were offered to the insured.

Appellee relies on the rule of law articulated in Jarrard v. Associates Discount Corporation, 99 So.2d 272 (Fla.1957), viz:

While practice, habit or custom may be admissible to show what occurred in a specific instance, and may form the basis of an inference, the probative value thereof must depend on the facts of each case. To be admissible the usage must have sufficient regularity to make it probable that it would be carried out in every instance. Further, it is our view that in order to constitute proof of performance of an act on a specific occasion, it is not sufficient merely to prove the habit, practice or custom, but there must also be some proof that the practice was followed in the particular instance in issue, and the evidence should show performance of the practice by those then charged with it. (emphasis supplied).

Whether we apply the Florida Evidence Code or the prior case law, we come to the conclusion that the rule was satisfied here. Not only was there testimony that it was the unfailing practice of the business to offer the required uninsured motorist limits, but there was testimony that the practice was followed here. True, the witness testified that he could not recall the exact language of a conversation that took place more than three years prior to trial, but he was positive that he followed his unfailing custom. This satisfied the rule that there be some proof that the practice was followed in the specific instance. The current statute requires no corroboration, so under either view, the evidence is admissible.

There being competent, substantial evidence to support the findings of the trial judge, whose function it was as trier of fact to determine its credibility, the final judgment is

AFFIRMED.

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

      . Neither at the trial level nor on appeal did either party mention or rely on section 90.406, Florida Statutes (1979), The Florida Evidence Code, which reads as follows:
      Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.
      This cause of action accrued following an auto accident on September 9, 1979, so the Florida Evidence Code would appear to apply here.

      . See Brown v. Giffen Industries, 281 So.2d 897 (Fla.1973), where the Supreme Court appears to abolish the rule requiring corroborating evidence that a customary practice was followed in a given case. Perhaps this holding is in recognition of the position that if one can prove by direct testimony what was done in a given case, proof of habitual practice is not necessary to submit the issue to the trier of fact although it might be helpful in strengthening the direct testimony. The issue before us here is not credibility, but admissibility.


text:
    AMERICAN CREDIT COMPANY OF ALABAMA, INC., an Alabama corporation v. Donald Oscar BRADFORD, Kenneth W. Campbell, Jerry Moore, and Jack Yarber Ford, Inc.
    Civ. 2833.
    Court of Civil Appeals of Alabama.
    April 7, 1982.
    Rehearing Denied May 12, 1982.
    Certiorari Denied July 23,1982, Alabama Court 81-703.

      Clement J. Cartron, Huntsville, for appellant.
    Jimmy E. Alexander of Steele, Alexander, Corder & Plunk, Athens, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves the interpretation and application of ARCP rule 25(c) as to a corporate merger of a party plaintiff corporation during the pendency of the civil action.

In July, 1978, American Credit Company of Alabama, Inc. (the Alabama corporation), sued several parties, Jack Yarber Ford, Inc. (Yarber) being one of them. The Alabama corporation merged with six foreign corporations into a North Carolina corporation in July, 1979. The name of the continuing corporation was changed to Barclays American/Credit, Inc. (Barclays). After a nonju-ry trial, a judgment was entered in December, 1980, for the Alabama corporation and against Yarber and another defendant for almost $9,000.

The trial court granted Yarber’s motion for a new trial on the express finding, ruling or ground that, after the filing of this case, the corporate merger occurred and the Alabama corporation thereafter failed to amend its complaint so as to make Barclays the correct party plaintiff. The Alabama corporation appealed. Because of the lapse of much time between the giving of the notice of the appeal and of this opinion, it is appropriate to note that the case was not submitted, for this court’s decision until February 19, 1982.

Rule 17, ARCP, controls as to the commencement of an action by requiring that the action be prosecuted in the name of the real party in interest at that time, but rule 25(c) controls where a transfer of interest is made during the pendency of an action. A corporate merger whereby a corporate party is dissolved constitutes a transfer of interest, and rule 25(c) applies if such merger occurs after the commencement of the civil action, the rule providing as follows:

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

Those provisions precisely cover the present situation. That rule allowed this civil action to continue by the sole original plaintiff, the Alabama corporation, unless, on motion, Barclays was ordered substituted, or joined, as a party plaintiff in the action. No such motion was ever made; consequently, no such substitution or join-der of parties was ordered. Therefore, the original plaintiff, the Alabama corporation, had the right under that rule to continue to prosecute the action as originally instituted to and through a judgment. Froning’s, Inc. v. Johnston Feed Service, Inc., 568 F.2d 108 (8th Cir. 1978); Singer Housing Co. v. Seven Lakes Venture, 466 F.Supp. 369 (D.C.Colo.1979); Liberty Broadcasting System v. Albertson, 15 F.R.D. 121 (W.D.N.Y.1953). Had a proper motion been duly made, the trial court would have then possessed the judicial discretion to either substitute Bar-clays as the sole party plaintiff, or to add Barclays as an additional party plaintiff, or to refuse either such substitution or joinder, if that action was deemed to be the wiser course. The Alabama corporation, even though merged, was still a proper party plaintiff. The Upgrade Corporation v. St. Regis Paper Co., 417 F.Supp. 21 (W.D.Ill.1975), affirmed, 541 F.2d 283 (7th Cir. 1976); 7A Wright and Miller, Federal Practice and Procedure, § 1958, p. 663.

Even though Barclays was never made a party plaintiff, the judgment is as binding upon them as if they had been such a party. United States v. Griffith Amusement Co., 94 F.Supp. 747 (W.D.Okla.1950). Yarber is protected from any separate action of Bar-clays against Yarber based upon the same subject matter, controversy, facts, indebtedness or liability here involved. This is especially true since the merger agreement provided, in legal effect, that Barclays would be bound by any judgment such as was here involved.

The most significant feature of Rule 25(c) is that it does not require that anything be done after an interest has been transferred. The action may be continued by or against the original party, and the judgment will be binding on his successor in interest even though he is not named. An order of joinder is merely a discretionary determination by the trial court that the transferee’s presence would facilitate the conduct of the litigation.

7A Wright and Miller, supra, at p. 664.

Since this case had already proceeded to a judgment, the probable future presence of Barclays as a plaintiff after the granting of the new trial did not facilitate the conduct of the litigation, but, to the contrary, that action of the trial court renewed the litigation which had been duly concluded.

The trial court’s stated reason for the granting of the motion for a new trial was insufficient as a matter of law, and, since none of the other grounds as contained in Yarber’s motion for a new trial have any merit, the trial court abused its discretion in granting a new trial. We reverse and remand.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.

      . Such a finding would also be correct under the Alabama Business Corporation Act, which was not applicable during the time frame of this case. § 10-2A~145(b)(5), Code of Ala. 1975, as amended.


author: COWART, Judge.

text:
    Albert GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1013.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This appeal involves the sufficiency of the allegations in a,n information charging robbery to allege the requisite mental intent.

After an examination of the record, we conclude that the witness .Hamrick’s in-court identification of appellant had an adequate basis independent of, and was not “tainted” by, his observation of appellant at the pre-trial bond hearing and there was no error in admitting Hamrick’s identifying testimony. We also conclude that the trial judge did not abuse the discretion he has under present Florida Rule of Criminal Procedure 3.410 in declining to have the court reporter read to the jury, upon its request, a portion of a witness’ testimony.

The information in this case charges robbery in the usual manner, alleging that appellant did “by force, violence, assault or putting in fear, unlawfully rob, steal and take away from” the named victim property which was the subject of larceny.

Appellant cites Bell v. State, 394 So.2d 979 (Fla.1981), for the proposition that the intent to permanently deprive the owner of his property is a necessary element of robbery as defined in section 812.13, Florida Statutes (1981). Appellant also cites Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), and Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981), in which this court relied on Bell to hold that specific intent to permanently deprive an owner of property is an element of theft as defined in section 812.-014, Florida Statutes (1981).

Whether Bell holds that the essential specific intent in the crime of robbery is the intent to deprive the possessor of a right to the property or a benefit thereof or that such specific intent must be the intent to permanently deprive does not control the disposition in this case, because here the question not only relates to the essential elements of the offense of robbery, but the sufficiency of the allegation of those elements in the charging document and the consequences of defects in alleging elements of a crime. In two cases, Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937), and Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922), cited by the supreme court in Bell, the supreme court had earlier held that charging documents alleging that the defendant did “rob, steal and take away” did not wholly fail to charge the crime of robbery and were therefore not fundamentally deficient. This was but an application of the general rule that, while an information which completely neglects to allege an essential element of a crime fails to allege a crime and is fundamentally deficient and can be attacked at any time, an information which imperfectly alleges an element of a crime but does not wholly fail to allege that element is not fundamentally deficient and must be attacked by a motion to dismiss or the defect is deemed harmless. Even if attacked by a motion to dismiss, denial of the motion may be harmless error if the defendant can show no prejudice in his defense. See Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981); Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980).

The information in this case charging that the appellant did “steal,” imperfectly alleges all of the elements of the offense of larceny, including the element of intention, which is “animo furandi,” just as an information charging statutory theft (§ 812.014, Fla.Stat.) which alleges only an intent to deprive, rather than the more complete and accurate “intent to permanently deprive,” merely imperfectly alleges the necessary mental element. See Brewer v. State, No. 81-528 (Fla. 5th DCA April 14, 1982) [1982 FLW 820]. Accordingly we hold that the information in this case was not fundamentally deficient and cannot be attacked for the first time on appeal.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . As amended effective February 1, 1973. See In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972).

      . The legislature has recently amended section 812.014(1), defining theft. Effective July 1, 1982, the specific intent required for theft is either the intent to temporarily or permanently deprive. Ch. 82-164, Laws of Fla. This same law repealed section 812.041, defining as a crime unauthorized temporary use of a vehicle.

      .In the DCA opinion, Bell v. State, 354 So.2d 1266 (Fla. 3d DCA 1978), the Third District Court of Appeal expressed the view that the legislature’s enactment of a new robbery statute in 1975 did away with the requirement of specific intent for the crime of robbery and that statutory robbery was but a general intent crime. The third district certified to the supreme court the question: “whether specific intent (i.e., the intent to permanently deprive the owner of property) is still a requisite element of the crime of robbery as now defined by Section 812.13, Florida Statutes (1975).” Id. at 1267. The supreme court, in Bell v. State, 394 So.2d 979 (Fla.1981), stated that “the elements of the crime as statutorily defined have traditionally been held to include specific intent, i.e., the intent to steal.” Id. at 979. The supreme court concluded that the legislature, by enacting the new robbery statute, had not eliminated the element of specific intent and held “that specific intent is still a requisite element of the crime of robbery_” Id. at 980. The question certified by the district court defines specific intent as being intent to permanently deprive. Of course, specific intent can be any intent to accomplish a particular objective or purpose and could be the intent to permanently deprive the possessor of his use and benefit of his property or could be merely the intent to deprive the possessor of the use and benefit of his property. The supreme court never stated in Bell that the intent in statutory robbery was the intent to permanently deprive. See Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981) (Cobb, J., dissenting). The point of law is not that difficult and should be made clear. Robbery is a form of aggravated larceny, being larceny from the person by violence or putting in fear. Since all the elements of larceny are included in robbery, there must be in robbery a specific intent to deprive the owner permanently of his property. See 2 W. Burdick, The Law of Crime § 600 at 428 n. 75 (1946), citing Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937), which case was cited by the supreme court in Bell.

      . Actually, this issue has been resolved by this court previously, but without opinion, in Xander v. Lefffer, No. 82-76 (Fla. 5th DCA January 15, 1982) (writ of prohibition raising this issue denied) and Lane v. State, No. 81-923 (Fla. 5th DCA March 10, 1982) (per curiam affirmed).


text:
    Cora Lee EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1029, 81-1030.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    James B. Gibson, Public Defender, and Frederick B. Karl, Jr., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant appeals her convictions of murder in the first degree and aggravated battery, and her sentences of life imprisonment and fifteen years, respectively. We affirm.

Appellant was charged with murdering Brazell Curry with a shotgun and the aggravated battery of Patsie Newton with a knife. The only contention on appeal is that the court erred in admitting into evidence, over objection of the defendant, five photographs depicting the murder victim. Appellant contends that she freely admitted responsibility for the homicide, and sought to show only that it was something less than premeditated murder. Consequently, says appellant, there is no purpose in admitting the photographs of the victim other than to shock the jury and create prejudice in their minds.

The trial court has broad discretion in regard to the admissibility of evidence, and his rulings on admissiblity will not be disturbed unless appellant shows an abuse of that discretion. Booker v. State, 397 So.2d 910 (Fla.1981). Allegedly gruesome and inflammatory photographs are admissible in evidence if relevant to any issue which must be proven and their relevancy is to be determined without regard to their gruesome or offensive nature. Adams v. State, 412 So.2d 850 (Fla.1982); Jackson v. State, 359 So.2d 1190 (Fla.1978). Such photographs are admissible if they accurately depict factual circumstances relating to the crime and are relevant in that they help the jury in finding the truth.

Where a photograph is used in connection with testimony regarding the cause of death, or to show the force and violence necessary to perpetrate the crime, such photographs are relevant and admissible. Booker. Where photographs are clearly gruesome, the test of admissibility is whether they are relevant to an issue in the case, not whether they are necessary to prove a fact in dispute. Foster v. State, 369 So.2d 928 (Fla.1979), cert. denied 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). Although a physician’s testimony was sufficient to establish the victim’s injuries and cause of death, admission of color photographs of the body was not error where the photographs were relevant to prove the nature and cause of the injuries resulting in death. Dillen v. State, 202 So.2d 904 (Fla. 2d DCA 1967), cert. dismissed, 209 So.2d 675 (Fla.1968). See also Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 472 So.2d 372 (Fla.1979); Tomlin v. State, 167 So.2d 745 (Fla. 2d DCA 1964).

At trial, the medical examiner testified that Ms. Curry died from massive bleeding caused by perforated puncture wounds to the arm, chest, and abdomen. The medical examiner, using photographs of the victim for identification, identified the victim and testified as to the nature of the wounds.

A defendant cannot, by stipulating as to the identity of a victim and the cause of death, relieve the State of its burden of proof beyond a reasonable doubt. Foster. The State still has the burden of proving the identity of the victim and cause of death in its ease in chief. Additionally, the State must prove premeditation if it is to sustain its charge of first degree murder. Clearly, the photographs of each of the entry and exit gunshot wounds were relevant on the issue of premeditation to prove the injuries which resulted in death, and to corroborate and explain the medical examiner’s testimony. Each photograph depicted something different, so it cannot be said that they were merely cumulative. Appellant has failed to show an abuse of discretion by the trial court in admitting the photographs.

The judgments and sentences are AFFIRMED.

SHARP and COWART, JJ., concur.

      . See Henninger v. State, 251 So.2d 862 (Fla.1971).

        . See Foster v. State, 369 So.2d 928 (Fla.1979), cert. denied, 447 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Alford v. State, 307 So.2d 433 (Fla.1975).

      . Appellant’s only objection at trial was that the photographs were not necessary to prove any facts in question, not that they were irrelevant.

      . The photographs were all of Ms. Curry.


author: COBB, Judge.

text:
    Karen Ann FUNGAROLI, formerly Karen Ann Giles, Appellant, v. John Emerson GILES, Appellee.
    No. 81-1185.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Sam E. Murrell & Sons, Orlando, for appellant.
    Robert F. Vason, Jr., of Potter & Vason, Mount Dora, for appellee.
   COBB, Judge.

The parties to this appeal were divorced in 1968. The final judgment required John Giles to pay child support for two minor children in an aggregate sum of $216.66 per month “until further Order of this Court....” There was no apportionment of the child support between the two children, a son and a daughter.

Giles became delinquent in his support payments resulting in a judgment against him entered in May, 1980, in the amount of $4,671.28. Thereafter, he still failed to make the required support payments and was cited for contempt with a hearing set before the trial court on June 12, 1981. On June 5, 1981, Giles served by mail upon counsel for his ex-wife, Fungaroli, a petition to modify the support order on the bases that the parties’ son had become eighteen in August, 1979, and was self-supporting. Fungaroli received notice of the petition for modification on June 8, 1981, four days before the scheduled hearing.

At the June 12,1981 hearing, Fungaroli’s attorney orally moved to have the petition for modification continued “until we can file a response to it and be more fully prepared because there’s something that probably we should do that we haven’t had time to do.” After a discussion, the court tabled the motion for continuance. The judge expressed the desire to first resolve the contempt issue and said, “then we’ll maybe start — informally talk a little about the modification angle.”

Giles defended his “current arrearages” on the ground that his support obligation to his twenty-year-old son had terminated two years earlier on August 9, 1979, when the son turned eighteen. The court correctly concluded that Giles was obligated to pay $216.66 per month until an order had been entered to the contrary. Regarding contempt of court for failure to pay the full $216.66 per month, the judge stated, “If Mr. Giles will pay the money, we’ll find him in technical contempt.” In addition to passing on the contempt issue, however, the trial judge stated that he was terminating the son’s support because he had reached eighteen, and that the parties’ daughter’s support would end upon her eighteenth birthday. These announced rulings cannot be reconciled with “an informal discussion”— and are legally incorrect as well. The court announced it did not need any testimony on the issue of terminating all support for each child upon that child reaching eighteen years of age.

With the judge and the attorneys for both sides proceeding upon these new conditions, the judge asked Fungaroli how much she needed to support the daughter; she stated $40.00 per week. After further discussion, Giles agreed to pay the $40.00 per week, $175.00 per month, to support the parties’ daughter. Neither Fungaroli nor her attorney ever agreed with the trial court’s erroneous assertions of law in regard to automatic termination of support at eighteen, nor with the trial court’s determination that, in the absence of a properly noticed hearing and evidence, an aggregate award for two children is automatically halved if support for one is terminated by majority or other eventuality. Cf. Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). At the conclusion of the hearing, the trial court stated: “This is a 50/50 proposition, you know, there are some points — each has some good points and each has some bad points; and that’s the way it shakes out. So, see if you can draw up something and bring it back to me.” (Emphasis added.)

Clearly, there was no agreement between the parties before the court. There was only an admonition from the trial judge to respective counsel to try to work something out in writing if they could, based upon several erroneous legal assertions made by the trial judge during the course of the hearing. The final order, which was prepared by Giles’ attorney, found Giles in “technical contempt” for failing to pay half of his $216.66 child support obligation in May and June, 1981. The order provided Giles could purge himself by paying the arrearage. It further provided that Giles’ support obligation terminated upon payment of the arrearage. Additionally, the order stated that Giles’ support obligation with regard to the daughter terminated on her eighteenth birthday, or when she married or became self-sufficient, whichever occurred first. Finally, the order “upped” the child support for the daughter from $108.33 to $175.00.

The court denied Fungaroli’s motion for rehearing, and she timely appeals.

The final judgment from which Fungaro-li appeals terminates Giles’ obligation to pay support for his son; no reason for termination is expressed in it. The final judgment also prospectively terminates Giles’ support obligation to his daughter upon her marrying, her emancipation, or her reaching majority. The order of modification also provides that during her remaining two years of minority, the parties’ daughter is entitled to $175.00 per month in support. The final judgment cannot stand as the trial court erred in his application of the law.

Contrary to the trial court’s belief, Giles’ support obligation did not automatically terminate at age eighteen where, as here, the dissolution was granted before the effective date of Chapter 73-21, Laws of Florida (which lowered the age of majority from twenty-one to eighteen), the judgment merely ordered payment of a monthly sum for child support without specifying the duration of such payments, and the son reached eighteen subsequent to the effective date of Chapter 73-21. Finn v. Finn, 312 So.2d 726 (Fla.1975). When the final judgment of dissolution was entered in this case on November 1,1968, the age of majority was twenty-one. Because the child support provision placed no time limitation on Giles’ support obligation, that obligation continues until each child reaches twenty-one. See Finn, 312 So.2d at 729. Even though Giles’ obligation continues until each child reaches twenty-one, the law allows him to petition the court for modification based on a substantial change in circumstances — either his or theirs. Mahaffey v. Harper, 405 So.2d 1070 (Fla. 1st DCA 1981); Hoffman v. Hoffman, 371 So.2d 1061 (Fla. 3d DCA 1979); Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978).

In his petition for modification, Giles alleged two bases for reduction of support: (1) that the son was eighteen, and (2) that the son was emancipated (i.e., not living with his mother, employed, and self supporting). He made no allegations concerning their daughter. Since no evidence/testimony was taken to prove that the son was emancipated, and since the son reaching majority could not itself terminate the support, the trial judge erred when he terminated the son’s support. The judge erred further by directing the daughter’s support to terminate when she reached eighteen.

The record makes clear that the whole discussion at the June 12 hearing concerning a change in the daughter’s support was grounded in three mistaken assumptions: (1) that the son’s support terminated automatically at age eighteen, (2) that the termination automatically halved Giles’ support obligation, and (3) that the daughter’s support automatically terminated at age eighteen.

Contrary to Giles’ statement in his brief that it was “agreed” that support for both children would end as they reached eighteen, the record clearly establishes that the judge had already indicated he was going to rule that way. The “agreement” cannot stand because it was a product of the judge’s erroneous ruling.

Accordingly, the order herein appealed is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . “Current arrearages” is used to distinguish the arrearages accruing after Fungaroli had obtained the May judgment against Giles for arrearages.

      . See Finn v. Finn, 312 So.2d 726 (Fla.1975).

      . Since the daughter’s support did not automatically terminate at age eighteen, Giles would have to seek this relief in order for the court to grant it, which he did not. Therefore, the trial court erred by ordering her support to terminate upon reaching majority.

      . Fungaroli had previously operated under the mistaken assumption that support to her son automatically terminated at age eighteen — in the prior petition for arrearages, she computed the arrearages at $108.33 per month from the time the son reached eighteen. No court order to that effect, however, had ever been entered: while the judgment for arrearages utilized the reduced figure in computing the amount, no order modified the original judgment in divorce.


author: SHARP, Judge.

text:
    Robert B. RUSSELL and Russell Florida Lands, Inc., Appellants, v. FLORIDA RANCH LANDS, INC., Appellee.
    No. 82-12.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.

      Gordon H. Harris and Herbert M. Hill, of Gray, Harris & Robinson, P. A., Orlando, for appellants.
    Edmund T. Woolfolk and Cameron H. Linton, of Woolfolk, Estes & Palmour, P. A., Orlando, for appellee.
   SHARP, Judge.

Robert Russell and Russell Florida Lands, Inc., appeal the lower court’s non-final order granting appellee’s motion for a temporary injunction. The essential elements which must be proved before a preliminary injunction can be issued are a legal right in the subject matter of the suit, likelihood of irreparable harm because of the unavailability of an adequate remedy at law and a substantial likelihood of success on the merits. Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979). Since none of these elements were established by the testimony or record in this case, there was no foundation upon which to ground a preliminary injunction. Accordingly, it is

REVERSED.

COBB and COWART, JJ., concur.


text:
    Edwin Gene WILLIAM, Petitioner, v. Lawson LAMAR, etc., Respondent.
    No. 82-542.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Edwin Gene William, pro se.
    No appearance for respondent.
   COWART, Judge.

Petitioner, serving fifty-one weeks in the county jail as a condition of probation, seeks by petition for writ of mandamus to have this court order jail officials to give him statutory gain time under section 951.-21, Florida Statutes (1981). The statute does not apply to incarceration as a condition of probation, as it is not a “sentence.” Heatherington v. State, 388 So.2d 1354 (Fla. 5th DCA 1980); Adams v. State, 387 So.2d 498 (Fla. 5th DCA 1980). The petition for mandamus is

DENIED.

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


author: RYDER, Judge.

text:
    CHAPMAN REALTY CORPORATION, a Florida corporation, Petitioner, v. MADEIRA MANAGEMENT, INC., a Florida corporation, Respondent.
    No. 82-300.
    District Court of Appeal of Florida, Second District.
    June 9, 1982.
    Thomas A. Smith, Tampa, for petitioner.
    John T. Allen, Jr., St. Petersburg, for respondent.
   RYDER, Judge.

Petitioner seeks a writ of certiorari quashing an order granting a motion for new trial. We grant certiorari.

The ease was originally heard before a visiting circuit judge, the Honorable John A. H. Murphree, on August 6, 1979, and upon conclusion of the trial, the judge took the case under advisement. On September 14, 1981, respondent, the plaintiff below, filed a motion for retrial alleging that a final judgment in the cause had never been entered and it appeared that Judge Mur-phree was not prepared to make a ruling. The Honorable Allen C. Anderson heard argument of counsel and entered an order stating he would treat the motion as a motion for new trial, and if a final judgment was not rendered within twenty days, the motion for new trial would be considered granted. A copy of Judge Anderson’s order was mailed to Judge Murphree but no response was received.

We find that it was a departure from the essential requirements of law for Judge Anderson to entertain the motion for new trial. In Kirkham v. Kirkham, 385 So.2d 733 (Fla. 2d DCA 1980), a husband’s petition to annul his marriage was granted and the wife timely moved for rehearing. Before a hearing was set on the wife’s motion, the judge who entered the final judgment of annulment rotated to a different division and a successor judge ruled on the motion. This court stated:

Unless the original trial judge is unable by reason of death, disability or other equivalent reason, or is unwilling by reason of recusation to consider a motion for rehearing, that judge should review and determine the motion. Epperson v. Epperson, 101 So.2d 367 (Fla.1958). Here, even though the circuit court assigned Judge Walker to another division, his jurisdiction to hear a motion for rehearing continued.

Judge Anderson was not presented with any evidence that Judge Murphree’s authority to rule in this case had terminated. On the contrary, the order granting the motion for new trial allowed an interim period of twenty days for Judge Murphree to render a final judgment, indicating Judge Anderson’s apparent belief that Judge Murphree still had authority. Therefore, it was error for Judge Anderson to entertain the motion and to order a new trial.

We note that petitioner correctly argues that unless a showing can be made that Judge Murphree’s authority to act has terminated, the proper remedy under these circumstances is to file a mandamus action compelling Judge Murphree to render a decision in this case.

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


author: PER CURIAM.

text:
    Norman ALTERMAN d/b/a Lake Point Plaza Apartments and State Farm Fire and Casualty Company, Appellants/Cross-Appellees, v. Lorraine ARMBAND, Appellee/Cross-Appellant.
    No. AD-77.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Yvonne E. Reed of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellants/cross-appellees.

      Gene Flinn, Miami, for appellee/cross-appellant.
   PER CURIAM.

We reverse that portion of the order in this workers’ compensation proceeding awarding to the appellee-claimant a fifty percent (50%) permanent partial disability, based upon loss of wage earning capacity, because claimant’s work search was inadequate, and there is no finding that an adequate work search was excused.

The deputy commissioner evidently was of the opinion that claimant’s disabilities, pain and weakness in her hands which severely impaired her use of her hands and her manual dexterity in general, impacted her ability to obtain or to carry out employment to a greater extent than was reflected by her relatively low (5%) permanent anatomical impairment of the body as a whole. Accordingly, as we did in Scotty’s Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981), we remand to the deputy commissioner for further proceedings and findings with respect to claimant’s wage earning capacity loss, including consideration of any additional evidence on this point which may be submitted by the parties.

We affirm the deputy commissioner’s finding of five percent (5%) permanent anatomical disability of the body as a whole, since there was competent, substantial evidence to support this finding. In view of our reversal of the wage earning capacity award, however, we also reverse the award of attorney’s fees and remand to the deputy commissioner for further consideration, in the light of our ruling, with respect to benefits obtained by virtue of the services of claimant’s attorney, and the entitlement to attorney’s fees for the same. The order as to costs is affirmed.

REVERSED and REMANDED for further proceedings.

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

      . Claimant’s vocational expert testified that based on the results of tests he administered it was his opinion that the open labor market was closed to the claimant. He performed no job canvass. The claimant made no effort to return to her former employment and had contacted only two potential employers in two years. There is no indication that either of these employers had openings. In Florida Division of Corrections v. Morgan, 382 So.2d 1288 (Fla. 1st DCA 1980), we held such testimony combined with a visit to five potential employers was insufficient to establish a loss of wage earning capacity. See also, Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975), wherein the Court held the claimant’s testimony as to continuing pain, her uncertainty concerning her ability to perform work available from her former employer, and her contact with one other potential employer, insufficient.

      . While a deputy’s finding as to wages the claimant might earn may not be unreasonable in light of his knowledge of present economic conditions and wage scales, nevertheless, the determination is not based on competent, substantial evidence unless there is some evidence in the record to support the figures arrived at by the deputy. City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980), citing, Wesley’s, Inc., v. Caramello, 156 So.2d 853 (Fla.1963).


author: THOMPSON, Judge.

text:
    Lynn Pitts SILLING, Appellant, v. STATE of Florida, Appellee.
    No. AD-255.
    District Court of Appeal of Florida, First District.
    June 11, 1982.

      Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Appellant was convicted and sentenced for one count of burglary with intent to assault and for two counts of aggravated battery with a firearm. Appellant alleges error as to four points, one being that the trial court erred in allowing testimony regarding statements she allegedly made after invoking her right to counsel. We agree and reverse and remand for a new trial.

Deputy Wasden arrested appellant and immediately read her her Miranda rights. Appellant acknowledged her understanding of these rights and waived her right to remain silent. Deputy Wasden and defendant then proceeded to her apartment so she could make arrangements for her young son. Subsequently, while they were still at appellant’s apartment, Deputy Wasden again advised her of her Miranda rights. She again indicated that she understood these rights and again waived her right to remain silent. Appellant then proceeded to explain to Deputy Wasden that she had gone to her husband’s apartment to procure her son’s clothes he had left there after a recent visit with his father. Appellant and her husband, Mark, were not divorced but had been living separately. Appellant knew that Mark had been living with another woman, Carla. Appellant then told Deputy Wasden that when she touched Mark’s apartment door it came open. Accordingly, she proceeded into the apartment and into the bedroom, where she saw Mark and Carla lying nude in bed. Deputy Was-den then asked appellant if that was when she began firing. At this point, appellant said she did not want to answer anymore questions without conferring with an attorney. Deputy Wasden did not question appellant further.

Subsequently, Deputy Wasden took appellant to the county jail, where she was booked by Deputy Taylor. Deputy Wasden told Deputy Taylor that appellant had been given her Miranda rights. Deputy Taylor did not read appellant her Miranda rights nor did he apprise her of her right to counsel as required by Rule 3.111(c), Fla.R. Crim.P. However, Deputy Taylor asked appellant “why she did it?” At trial Deputy Taylor testified that appellant responded with something along the line of “I was tired of him messing me over.” Appellant objected to the admission of this statement.

In view of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), decided subsequent to the trial in this case, Deputy Taylor’s testimony on this point was inadmissible. Edwards held that once the right to counsel is invoked, it must be voluntarily, knowingly, and intelligently waived. In the instant case, there is no evidence that appellant voluntarily, knowingly, and intelligently waived her right to counsel that she had previously specifically invoked. Edwards further held that once an accused expresses a desire to exercise her right to counsel, she cannot be interrogated further by police until afforded counsel, unless she initiates further “communication, exchanges or conversations with the police.” Id., 451 U.S. at 484-486, 101 S.Ct. at 1885, 68 L.Ed.2d at 386. There is no evidence that the conversation with Deputy Taylor was initiated by appellant. Indeed, from the testimony it appears that Deputy Taylor initiated the conversation by asking her a question. Accordingly, Deputy Taylor’s testimony on this point is inadmissible. We therefore reverse appellant’s convictions and sentences and remand for a new trial.

The remaining three points raised by appellant are without merit. For the foregoing reasons, we reverse appellant’s convictions and. sentences and remand for a new trial consistent with this opinion.

ERVIN and BOOTH, JJ., concur.


author: McCORD, Judge.

text:
    TOPEKA INN MANAGEMENT and Insurance Company of North America, Appellants, v. Sharon K. PATE, Appellee.
    No. AF-149.
    District Court of Appeal of Florida, First District.
    June 11, 1982.

      John J. O'Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   McCORD, Judge.

The employer/carrier appeal from a workers’ compensation order awarding wage-loss benefits to the claimant. Since this injury occurred on August 2, 1979, this appeal is governed by the provisions of Section 440.15(3)(b), Florida Statutes (1979). We affirm.

Claimant, a former waitress, suffered a compensable injury to her back when she slipped and fell while working in a coffee shop. As a result of this fall, she suffered a compression fracture of the first lumbar vertebrae. Her treating physician, Dr. Miller, assigned a maximum medical improvement date of February 18, 1980, and a permanent partial impairment to the body as a whole of 5%. He also advised the claimant to avoid very heavy lifting.

From the date of maximum medical improvement until April 18, 1980, claimant’s only efforts to seek employment were weekly telephone calls to her former employer. Her reason for doing so was her expectation that she would, in fact, be able to return to her former position. Finally, tiring of waiting for an employment opportunity to open with her former employer, claimant got a job as a secretary with CETA beginning April 18,1980. This was a full-time job at the minimum wage then prevailing. She continued in this position until August of 1980, when she quit to care for her convalescing husband, who was recovering from a heart attack. She then returned to full-time employment in October of 1980 at the Nursing Pavilion as a nurse’s aide. This job, too, was minimum wage. In the interim between August and October, she had also worked at a Waffle House as a cook for one week. She continued as a nurse’s aide until January of 1981, at which time she suffered another compen-sable injury to her back. As of the hearing date below, July 10, 1981, she had not yet recovered from the second accident. In his order, the deputy commissioner found that she was “... entitled to recover wage-loss benefits together with penalties and interest from the date of maximum medical improvement and continuing with a credit for all benefits unpaid.” This appeal ensued.

Examining these facts on a month-to-month basis, as we must, [§ 440.-15(3)(b)l, Fla.Stat.(1979) ] we find that the claimant has met her burden of establishing her entitlement to wage-loss benefits. Initially, we have no difficulty in determining that the claimant has suffered a wage loss for those two periods of time in which she worked as a CETA secretary and a nurse’s aide, respectively. As both these jobs were clearly within her prescribed physical limitation, we can only conclude that she has accepted “employment commensurate with ... her abilities” [§ 440.15(3)(b)2] and, therefore, that her claimed wage loss during those two periods of time is the result of her compensable injury.

The employer/carrier argues that the claimant may not recover wage-loss benefits for the period of time between August, 1980, and October, 1980, for the record clearly indicates that she quit work in order to care for her convalescing husband who was recovering from a heart attack. Thus, they argue, she has not established “... that any wage loss claimed (for that period) is the result of the compensable injury.” § 440.15(3)(b)2, Fla.Stat.(1979). Strictly speaking, her wage loss during this period of time was not solely due to her compensable injury. That fact, however, does not preclude her entitlement to wage-loss benefits. It is a cardinal rule of statutory construction that the entire statute under consideration, and not just isolated phrases and words, must be considered in determining legislative intent, and effect must be given to every part of the provision under construction and every part of the statute as a whole. See State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). Section 440.15(3)(b)2 provides:

The amount determined to be the set salary, wages, and other remuneration the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from the sheltered employment. In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subpara-graph 1 may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury. (Emphasis supplied.)

Considering the statute as a whole and applying it to these facts, we conclude that, by accepting employment as both a secretary and a nurse’s aide, claimant has demonstrated the “salary, wages, and other remuneration (she) is able to earn after the date of maximum medical improvement.” Therefore, the wage loss attributable to her injury for these months when she was caring for her ill husband is the difference between her former salary as a waitress and the prevailing minimum wage. As the Workers’ Compensation Act is remedial legislation and is intended to be liberally construed in such a manner as to effectuate the purpose for which it was enacted, [Gillespie v. Anderson, 123 So.2d 458 (Fla. 1960)] our construction of Section 440.-15(3)(b)2 is consistent with the legislative intent underlying wage loss, which is that a worker be compensated for his actual, demonstrable loss. See Alpert & Murphy, Florida Workmen’s Compensation Law, § 11B-1 (Supp.1981). Further, this Court does not favor technical means for denying coverage, and to mechanically apply the last phrase of the statute, without any reference to the preceding phrases or the legislative intent, would result in such a disfavored technical result. However, we caution against anyone’s misconstruing this opinion as condoning an award of wage-loss benefits whenever an employee has quit his or her job. Factors such as length of employment and the reason for quitting, among others, are important considerations and must be addressed to the sound discretion of the deputy commissioner.

We also find no error in the award of wage-loss benefits from February 18, 1980, through April 18, 1980. Claimant’s belief that she would be able to return to her former employment, coupled with her subsequent diligent efforts to work and the relatively short period of time in which she was unemployed, reveal adequately that she has suffered a demonstrable wage loss for these two months and that the wage loss was the result of her compensable injury.

As noted previously, in January of 1981, the claimant suffered yet another disabling injury from which she had not yet recovered. Under Section 440.15(5)(c) and (d), Florida Statutes (1979), an employee is entitled to both wage-loss benefits and temporary total disability benefits if she suffers an accident causing temporary total disability while she is still receiving benefits from the previous accident. Alpert & Murphy, Florida Workmen’s Compensation Law, § 11B-12, p. 61 (Supp.1981). Subsection (c) also provides:

[T]he total benefits payable shall not exceed the maximum compensation rate in effect for temporary disability at the time of the subsequent injury. Any reduction in benefits due to such limits shall be applied first to the wage-loss benefits available as a result of the prior injury.

Since the deputy’s order does not contain any such language, we hereby modify it to include such a proviso and, as modified, AFFIRM the order.

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


author: LARRY G. SMITH, Judge.

text:
    T. J. CHASTAIN FARMS and Florida Farm Bureau Insurance Companies, Appellants, v. Greg KUSIAK, Appellee.
    No. AF-369.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    John J. O’Riorden, Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   LARRY G. SMITH, Judge.

On this appeal by the employer/carrier we affirm the deputy commissioner’s award of attorney’s fees to the claimant’s attorney based upon the “bad faith” provision, Section 440.34(3)(b), Florida Statutes (Supp. 1980).

A chronology of the events preceding the deputy commissioner “bad faith” ruling amply demonstrates the basis for the award. On October 30, 1980, the claimant injured his knee in an industrial accident, and was hospitalized for three or four days. On November 8, 1980, claimant reinjured his knee, and was hospitalized again for a much longer period of time. In February, claimant had surgery on his knee at which time he came under the care of Dr. Kaufman. Claimant’s bills for treatment and hospitalization were submitted to the employer but remained unpaid, the employer at one point indicating that it wasn’t accepting claimant’s injury a compensable. In addition, the employer refused to give the claimant the name of its worker’s compensation insurance carrier. Finally, the claimant secured the services of an attorney who filed a claim for compensation and medical benefits on February 24, 1981. Over the next several months, claimant suffered several episodes of his knee “locking,” some of which were work-related, some of which were not. These incidents also required treatment and hospitalization.

The carrier took claimant’s deposition on April 13, 1981, and took Dr. Kaufman’s deposition on June 17, 1981. At this time, Dr. Kaufman’s bill and claimant’s hospital bills were still unpaid. There is some confusion in the record about the exact amount of compensation benefits which had been paid to this date, but clearly, the amount was negligible considering all of claimant’s periods of disability.

On July 1, 1981 (or thereabouts), at a pre-trial conference in the case the employer/carrier agreed to pay all outstanding medical bills and temporary total compensation to the claimant. A special hearing was held on July 8, 1981 for the purpose of considering the award of attorney’s fees only, and this was followed on July 22,1981 by the order appealed, in which the deputy commissioner found the employer initially controverted this claim, and through its carrier did not discharge its obligation to timely investigate the claim and to promptly pay benefits due to the claimant.

We find the employer/carrier’s appeal totally without merit. Although the employer had actual notice of claimant’s injury to his knee from the outset, it failed to file a first report of injury until December 29, 1980, ignoring the requirement of Section 440.185(2). Neither the employer nor carrier filed a notice to controvert as required by Section 440.20(6) even though their actions clearly amounted to a contro-version of claimant’s claim. Further, the employer failed to provide medical treatment and failed to provide compensation benefits after it had notice of claimant’s injury, contrary to Section 440.20(2), which provides that the first installment of compensation becomes due on the fourteenth day after the employer has knowledge of the injury. Finally, the employer/carrier offered no evidence or testimony to excuse these failures.

This case is unlike Walt Disney World Company v. May, 397 So.2d 1003 (Fla. 1st DCA 1981), in that there the employer admitted the accident, provided all necessary remedial treatment, and paid temporary total disability benefits when the claimant was put back in the hospital for her back condition. Walt Disney World withheld benefits only for a disputed period of some two and one-half months, in reliance upon the report of its in-house physician, that the claimant was capable of returning to work during that time. This case is further unlike Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981), in that the deputy here did not “simply infer from general testimony that bad faith exists ...,” but held a separate fact-finding proceeding specifically directed to that issue.

The fact that the employer is guilty of much of the conduct which is criticized here is inconsequential as actions of the employer amounting to bad faith are imputed to the carrier. Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981). This case presents a situation in which the employer/carrier simply ignored the duty to promptly investigate and process appellee’s claim. We thus conclude that the deputy commissioner was entirely correct in determining that their actions were oppressive and in willful and reckless disregard of the claimant’s rights. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

The order appealed is AFFIRMED.

MILLS and SHAW, JJ., concur.


text:
    Lynda J. CALVERT, Appellant, v. ALACHUA COUNTY SCHOOL BOARD and Kemper Insurance Company, Appellees.
    No. AG-177.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon of Jones & Langdon, P. A., Gainesville, for appellees.
   PER CURIAM.

The workers’ compensation claimant appeals from a deputy commissioner’s order granting the employer/carrier an offset for group insurance premiums paid by the employer during a period of temporary total disability. On this issue we reverse. It is improper to allow an offset for group insurance premiums paid by an employer during a period of disability. Reese v. Sewell Hardware Co., Inc., 407 So.2d 965 (Fla. 1st DCA 1981); Belle v. General Electric Co., 409 So.2d 182 (Fla. 1st DCA 1982). The remaining point we find to be without merit and the order is otherwise affirmed.

REVERSED and REMANDED for reconsideration of the employer/carrier offset.

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


text:
    BEKINS VAN LINES and Gab Business Services, Inc., Appellants, v. Walter C. JOHNSON, Appellee.
    No. AG-288.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.

      Ivan Matusek, St. Petersburg, for appel-lee.
   PER CURIAM.

This workers’ compensation case presents the issue of an award of temporary total disability benefits for a period of time during which the claimant was in prison. Our review of the record indicates that competent substantial evidence supported the Deputy Commissioner’s finding that claimant was totally disabled during the period in question. Accordingly, the order below is affirmed.

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

      . We find this award not precluded by Section 440.15(9), Florida Statutes, which is applicable only to permanent total disability benefits.


author: THOMPSON, Judge.,

text:
    C. B. DAY REALTY COMPANY and R. P. Hewitt & Associates n/k/a Hewitt, Coleman & Associates, Appellants, v. John M. BURROW, Appellee.
    No. AG-338.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   THOMPSON, Judge.,

The employer-servicing agent (F/SA) contended the deputy commissioner (the deputy) erred in: (1) ordering payment of . medical bills of unauthorized physicians; (2) determining the date of maximum medical improvement (MMI); and (3) awarding attorney’s fees. We affirm in part and reverse in part.

The claimant sustained a compensable back and neck injury on May 17, 1979. After some initial treatment not involved in this controversy, the claimant was referred to an orthopedist by the E/SA. He was examined and treated by the orthopedist and referred by him to two neurologists for consultation and EMG studies. After further treatment by the orthopedist claimant was released to return to light duty on July 19, 1979. On returning to work the next day he experienced chills, fever, and nausea which the orthopedist subsequently advised were not related to his injury or any orthopedic problems.

The claimant then obtained an appointment with Dr. Hood, a family practitioner who treated him for his gastrointestinal complaints. When called upon to authorize this treatment, the E/SA refused because the treatment was not related to the industrial accident. Several days later the claimant returned to Dr. Hood complaining of orthopedic problems. ' Hood then hospitalized the claimant in order to obtain prompt orthopedic examination by another orthopedist. The claimant knew at the time he entered the hospital that neither Dr. Hood nor the hospital were authorized. The claimant was receiving appropriate care from three authorized physicians but nonetheless sought treatment from an unauthorized doctor without following statutory procedure. There was no evidence that the claimant’s hospitalization was on an emergency basis and the deputy made no finding of emergency. Under these circumstances, the deputy erred in ordering payment of the bills for unauthorized remedial treatment and care.

The deputy’s determination of the claimant’s date of MMI is supported by competent substantial evidence.

In view of the foregoing reversal in part, the amount of the attorney’s fee is to be reconsidered as a result of the reduction in benefits obtained.

Affirmed in part and reversed in part for further proceedings consistent with this opinion.

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


text:
    HELLER BROTHERS and Liberty Mutual, Appellants, v. Ronald AVANS, Appellee.
    No. AH-132.
    District Court of Appeal of Florida, First District.
    June 11, 1982.

      Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding temporary total disability benefits from the date of the accident and continuing, an examination, evaluation and treatment, if necessary, by Dr. German Montoya, and reserving jurisdiction to award attorney’s fees. We reverse the award of temporary total disability benefits, as there was no competent substantial evidence that claimant was unable to work subsequent to May 4, 1981. See Lindsley Home Care Centers v. Fuster, 413 So.2d 810 (Fla. 1st DCA 1982). Accordingly, the Deputy Commissioner erred in awarding temporary total disability absent a showing of a bona fide work search. LeHigh Corporation v. Byrd, 397 So.2d 1202, 1204 (Fla. 1st DCA 1981).

The award of an examination and treatment “if necessary” by Dr. Montoya was also erroneous, absent a conflict in the medical evidence, as there were no allegations that authorized remedial treatment furnished was inadequate or otherwise inappropriate. See K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979). The claimant produced no evidence that further evaluation was reasonably required by the nature of his injury. Section 440.-13(1), Florida Statutes; Bryant v. Elberta Crate & Box Co., 156 So.2d 844 (Fla.1963).

Accordingly, the order below is REVERSED.

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

      . On this date, the employer/carrier stopped voluntarily paying temporary total disability benefits.


text:
    Deborah WASHBURN, Appellant, v. Douglas WASHBURN, Appellee.
    No. 81-2003.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied June 29, 1982.
    Robert E. Stone, State Atty., and John H. Power, Asst. State Atty., Vero Beach, for appellant.
    Roger W. LaJoie of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appellee.
   PER CURIAM.

The trial court’s order which makes the father’s responsibility to pay child support dependent upon the mother’s willingness to adhere to a visitation schedule is reversed upon the authority of Maloney v. Maloney, 396 So.2d 1227 (Fla. 2d DCA 1981); Davis v. Davis, 376 So.2d 430 (Fla. 1st DCA 1979); Vecellio v. Vecellio, 313 So.2d 61 (Fla. 4th DCA 1975).

Accordingly, the order appealed is vacated and the cause is remanded for further proceedings consistent with this opinion.

HURLEY, DELL and WALDEN, JJ., concur.