author: WENTWORTH, Judge.

text:
    WASHINGTON SQUARE ASSOCIATES, LTD., et al., Appellant, v. Honey BOURNE, Appellee.
    No. ZZ-36.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.

      Anthony J. Beisler, Fort Lauderdale, for appellant.
    Don Lacy, Fort Lauderdale, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order by which claimant was found to have sustained a compensable injury, with entitlement to various workers’ compensation benefits. Jurisdiction was retained as to “additional benefits.” The parties agree that the appropriate compensation rate should be $125.40, and the order is hereby amended in this regard. The order is reversed and remanded as to the retention of jurisdiction for “additional benefits,” and, as amended, is otherwise affirmed.

Claimant sustained injury in a work-related automobile accident and, unaware of her possible entitlement to workers’ compensation benefits, personally obtained and paid for medical treatment. Employer/carrier contend that claimant is not entitled to reimbursement, by way of workers’ compensation benefits, for any medical payments covered by P.I.P. insurance. However, employer/carrier expressly waived an individualized accounting as to the various medical bills, and stipulated that medical was accepted if the injury were found to be compensable. The order requires reimbursement only for those medical benefits which claimant has “paid .. . out of her own personal funds. . .. ”

After finding that claimant had sustained a compensable injury, the deputy expressly found that claimant had attained maximum medical improvement, with a residual permanent impairment. However, the deputy has not mandated any responsibility of the parties in this regard and has retained jurisdiction to determine “any additional permanent partial physical impairment, temporary total disability benefits, or any other benefits under the Act.... ” These issues were properly presented and ripe for adjudication, and the deputy erred by retaining jurisdiction and failing to dispose of these issues. Dunn Lumber & Supply Co. v. Roy, 382 So.2d 51 (Fla. 1st DCA 1980). The deputy has also failed to include a decretal clause in his order, and has not otherwise settled the rights or responsibilities of the parties other than to indicate that claimant should be reimbursed for medical payments made from her personal funds, and that employer/carrier’s advance payments are to “be on compensation.” Insofar as the order does not adequately adjudicate the rights and responsibilities of the parties, it is deficient and must be remanded. Central Oil Co. v. Campen, 390 So.2d 191 (Fla. 1st DCA 1980).

While we find that employer/carrier has shown error requiring reversal in part and remand of the order appealed, we note that such error might more readily have been corrected by application to the deputy before the order was appealed. See generally, Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

Accordingly, the order, as amended, is affirmed in part, reversed as to the deputy’s retention of jurisdiction as to additional benefits, and remanded for further proceedings.

ERVIN and JOANOS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    H. G. HASKELL, Jr., Appellant, v. FOREST LAND AND TIMBER COMPANY, Appellee.
    No. AB-363.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Richard B. Davis, Jr., Jasper and B. Kemp Haskell, Jacksonville, for appellant.
    Ernest A. Sellers and Andrew J. Decker, III of Airth, Sellers & Lewis, Live Oak, for appellee.
   PER CURIAM.

E. G. Haskell, Jr. appeals a judgment entered following a jury trial. The dispute arose in March 1971 when Haskell attempted a controlled burn on his timberland. A fire broke out on the adjacent timberland owned by Forest Land and Timber. The matter was submitted to arbitration to determine the amount of damage done to Forest Land and Timber’s property. After an initial delay in the selection of the third arbitrator, a report was issued on September 29, 1971 awarding $2,921.85. On October 7,1971, Forest Land and Timber filed a tort action against Haskell without mentioning the arbitration. On November 3 Haskell answered asserting the arbitration as an affirmative defense. This answer was filed within 90 days of the arbitration award. Forest Land and Timber did not file a reply to the affirmative defense. See Rule of Civil Procedure 1.100(a). Over two years later, on January 29, 1973, Forest Land and Timber filed an amended complaint asserting that the arbitrators showed evident partiality and asking that the arbitration award be vacated. The circuit judge submitted the issue of partiality to a jury during a trial 7% years later. The verdict was that the arbitration award should be vacated and greater damages in the amount of $20,500.00 awarded.

The only issue which requires discussion is whether the appellee complied with § 682.13 Fla.Stat. The appellee argues that Rule of Civil Procedure 1.110(e) converted the appellee’s silence in the face of an affirmative defense filed within 90 days of the award, to the required petition to vacate. We reject this contention and hold that in order to vacate an arbitration award some affirmative action by the party seeking relief from the award must be made within the statutory time period. Allowing the appellee to challenge the arbitration proceeding at this late date was error.

The statutory language makes it clear that in enacting § 682.13 the legislature sought to limit the grounds for overturning an arbitration award and to require that the effort to overturn the award be initiated promptly. To carry out this purpose we interpret the statute as requiring a petition to vacate stating the grounds therefor. The automatic denial provision of Rule 1.110(e) does not satisfy the requirements of § 682.13. In this case the first effort to plead grounds for vacating the award was by filing an amended complaint, two and one-half years after the arbitrator’s report was made.

In light of our ruling on this issue the trial court is required by § 682.13(4) to confirm the arbitration award. There is no need to pass upon the appellant’s other points.

The judgment is REVERSED and the cause is REMANDED for proceedings in accordance with this opinion.

ERVIN, BOOTH and THOMPSON, JJ., concur.

      . Section 682.13:
      (1) Upon application of a party, the court shall vacate an award when:
      (a) The award was procured by corruption, fraud or other undue means.
      (b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.

        (c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.
      (d) The arbitrators or the umpire in the course of his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
      (e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.
      But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.
      (2)An application under this section shall be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.
      (3) In vacating the award on grounds other than those stated in subsection (1)(e), the court may order a rehearing before new arbitrator chosen as provided in the agreement or provisions for arbitration or by the court in accordance with s. 682.04, or, if the award is vacated on grounds set forth in subsection (l)(c) and (d), the court may order a rehearing before the arbitrators or umpire who made the award or their successors appointed in accordance with s. 682.04. The time within which the agreement or provision for arbitration requires the award to be made is applicable to the rehearing and commences from the date of the order therefor.
      (4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.

      . Cf. Lopez v. Roque Tile Co. v. Clearwater Development, 291 So.2d 126 (Fla. 2d DCA 1974).


author: BASKIN, Judge.

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Jaime and Guarina CHACON, Appellees.
    No. 80-1066.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    James F. Dougherty, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Lawrence Rodgers, Miami, for appel-lees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

We find no error in the Final Declaratory Judgment entered by the trial court determining in effect that appellees, who were insured under two uninsured motorist policies, one by State Farm Insurance Co. covering Jaime Chacon and another by appellant Fidelity & Casualty Company of New York covering appellees’ daughter Teresita, could collect from both insurers. In the event appellees recover from Fidelity & Casualty Company of New York, their settlement with State Farm Insurance Co. would subject the entire amount received to pro rata division by the insurers up to the amount of appellees’ losses. Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966); State Farm Mutual Automobile Insurance Co. v. Colonial Penn Insurance Co., 379 So.2d 1036 (Fla. 3d DCA 1980); State Fire & Casualty Co. v. National Indemnity Co., 225 So.2d 570 (Fla. 3d DCA 1969).

Affirmed.


text:
    Robert Lee BRANTLEY a/k/a Robert Brantley a/k/a Cary Brantley, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1248.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

The Order of Revocation of Probation is modified to strike therefrom the reference to the violation of probation arising from the admittedly unproved criminal charge filed in Case No. 80-3318, and in all other respects is affirmed, see Downer v. State, 375 So.2d 840 (Fla.1979) (rehearing); State v. Freber, 366 So.2d 426 (Fla.1978). Since the record presented on appeal does not contain sufficient information to enable us to determine whether the defendant was entitled to be sentenced as a youthful offender under Section 958.05, Florida Statutes (1979), compare Cannon v. State, 384 So.2d 970 (Fla. 3d DCA 1980), with Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), we affirm the sentence imposed without prejudice to the defendant applying to the trial court for sentencing relief under Florida Rule of Criminal Procedure 3.850.

Affirmed as modified.


author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

text:
    Clinton JOHNSON a/k/a Willie James, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1311.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.

      Bennett H. Brummer, Public Defender and James V. Johnstone, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We have reviewed defendant’s conviction for second-degree murder and sentence of life imprisonment, and we are unable to find support in the record for his contention that he was deprived of a speedy trial. Notably absent from the record is a motion for discharge. Fla.R.Crim.P. 3.191(a)(1). We deem it necessary, however, to reverse the conviction and sentence because we observe error in the trial court’s exclusion of Dr. Loeffler’s expert testimony in support of his opinion that defendant Johnson was legally insane at the time he committed the crime charged.

In furtherance of an insanity defense, defense counsel inquired of psychologist Dr. Loeffler:

Q. The incident took place on July 16.[] Could you render an opinion as to his mental state on July 16?
A. Yes, I can.
Q. What would that opinion be?
A. My opinion would be that at the time he did not know right from wrong. He did not know the nature and consequences of his behavior.
Q. In your opinion, within reasonable professional certainty, would Clinton Johnson be able to distinguish right from wrong on the date of July 16, and was he able to know the nature and consequences of his act?
A. No, my opinion is that he could not distinguish right from wrong and did not know the nature and consequences of his actions.

At the conclusion of all testimony, the state sought to exclude Dr. Loeffler’s testimony on the ground that counsel’s inquiry ^concerning July 16th rendered Dr. Loef-fler’s responses irrelevant to the issue of whether defendant was insane on the date of the crime, July 19th. The court was unsure of its recollection and asked the court reporter to read back the testimony. The court reporter reread portions of the testimony containing the incorrect date; the court then agreed with the state and excluded Dr. Loeffler’s testimony as irrelevant to prove defendant’s insanity on the date of the offense. However, the reporter failed to read:

Q. In your opinion — your professional opinion, was he insane at the time of the crime?
A. In terms of the M’Naughten rule, I would say he was insane at the time of the alleged offense.

In our opinion, the exclusion of Dr. Loeffler’s testimony deprived defendant Johnson of a fair trial and of his constitutional right to present witnesses in his behalf. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1820, 18 L.Ed.2d 1019 (1967). To establish insanity, defendant was required to prove that he was insane at the time of the offense. Chatman v. State, 199 So.2d 475 (Fla.1967); Blatch v. State, 216 So.2d 261 (Fla.3d DCA 1968), cert. dismissed, 225 So.2d 532 (Fla.1969). The exclusion may not be considered harmless error, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967), despite the presence of other medical testimony that defendant Johnson was insane, cf. United States v. Minor, 459 F.2d 103 (5th Cir. 1972) (exclusion of record of state court adjudication of incompetency not harmless error where accused raised insanity defense, although lay witnesses testified that defendant had been adjudged incompetent), because the law placed the burden of proof on defendant Johnson while the court’s action curtailed his opportunity to meet that burden.

Constitutional error may not be deemed harmless if a reasonable possibility exists that the error may have contributed to the conviction or that the error may not be found harmless beyond a reasonable doubt. Nowlin v. State, 346 So.2d 1020 (Fla.1977), citing Chapman v. California, supra; see § 924.33, Fla.Stat. (1979).

Our decision to reverse defendant’s conviction renders it unnecessary for us to review the propriety of the state’s comment during closing argument that it was “unheard of” for a person to spend more than two years in the state hospital system if found insane. We agree that so prejudicial a comment should not have been made to the jury. Evalt v. United States, 359 F.2d 534 (9th Cir. 1966); Williams v. State, 68 So.2d 583 (Fla.1953). We need not reach defendant’s remaining contentions.

Reversed and remanded for a new trial.

DANIEL S. PEARSON, Judge,

concurring specially.

I am not content to rest the decision in this case on the singular fact that the transcript reflects that Dr. Loeffler intoned the magic words that the defendant was insane “at the time of the alleged offense.”

First, if Loeffler’s testimony had only been that the defendant was insane on July 16, three days before the alleged offense, such testimony would certainly have been relevant, and, it follows, clearly admissible, to prove that the defendant was insane on July 19. While the issue to be decided was insanity at the time of the offense, evidence of the defendant’s mental condition before or after the offense supports an inferential conclusion that the defendant was insane at the crucial moment. See United States v. Sims, 637 F.2d 625 (9th Cir. 1980), and cases collected therein.

Second, everyone knew the date in defense counsel’s careless question to Loef-fler, “The incident took place on July 16. Could you render an opinion as to his mental state on July 16?” was, in fact, a mistake. The prosecutor, totally aware of the mistake, made no objection to the question or Loeffler’s response. This failure to contemporaneously object, which so often does in a defendant on a strategic bypass theory, see, e.g., State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978), should equally do in the State. The prosecutor’s inaction was a waiver of objection to the relevancy and admissibility of Loeffler’s testimony. However, well after Loeffler completed his testimony and with final arguments about to begin, the prosecutor, certain of the error in the date, moved to strike Loeffler’s testimony as irrelevant. Thereafter, the pertinent colloquy between defense counsel and the court went like this:

“THE COURT: He already stated the offense was on the 16th.
“[DEFENSE COUNSEL]: That was my question.
“THE COURT: I am sorry.
“[DEFENSE COUNSEL]: What I am saying, rather than to say — there is no question they are alleging the 19th. If there is a question in there saying the date of the offense, which is obviously the 19th, that should suffice.
“THE COURT: No, sir.
“[DEFENSE COUNSEL]: I have a standing objection of that untimeliness of Mr. Woodard’s objection.
“THE COURT: It has nothing to do with the timeliness. The question at this point is whether it is a matter that should be — whether the testimony in and of itself should go to the jury based on the fact that it does not relate to the date charged.
“He did not object to this opinion. He now is moving to strike based upon the fact of the date of July 16th. Has no relationship to the date of the offense, which is July the 19th.
“It is a proper motion and the motion is granted.”
“[DEFENSE COUNSEL]: I would ask the Court to specifically instruct the jury to disregard Doctor Loeffler’s opinion as of the date of the offense and not his entire opinion.
“THE COURT: His opinion, sir, with the entire matter has to be stricken because his opinion was on July 16th.
“[DEFENSE COUNSEL]: What I am saying, strictly instruct the jury they are not to confuse it with striking Doctor Loeffler’s entire testimony, his diagnosis and et cetera.
“THE COURT: I intend to advise this jury that the opinion given by Doctor Loeffler as to whether or not the defendant knew the difference between right and wrong and appreciated the wrongfulness of his acts is stricken, period. I am not going to go into anything else.
“I am saying his opinion is being stricken. They are to disregard it.”

I am sure there are still some followers of the trial by ambush school who would look with admiration upon the prosecutor’s belated and calculated move to eviscerate the defendant’s bona fide insanity defense. However, it ill serves our system of justice for courts to place their imprimatur on this conduct. ;

SCHWARTZ, J., concurs in the opinions of both BASKIN and DANIEL S. PEARSON, JJ.

      . The crime was alleged to have occurred on July 19, 1979.

      . Chatman reiterates that the burden of proving insanity is on the defendant because he is presumed sane under the law. When he rebuts the presumption of sanity by presenting evidence of insanity sufficient to raise a reasonable doubt, the burden shifts to the state to prove sanity beyond a reasonable doubt. Holmes v. State, 374 So.2d 944 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980); Parkin v. State, 238 So.2d 817 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Farrell v. State, 101 So.2d 130 (Fla.1958); Greenfield v. State, 337 So.2d 1021 (Fla.2d DCA 1976).

      . The record does not show whether Loeffler was still available to be recalled as a witness to correct the mistake in the date or any effort by defense counsel to reopen the testimony. The record does show, however, that defense counsel, presumably relying on the fact that Loef-fler’s testimony was already before the jury, allowed another defense psychiatrist to go ahead with long-standing foreign travel plans and excused him from giving testimony after the court refused to hear this witness late in the day before his intended departure. shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.


text:
    John Lloyd WALSH, Appellant, v. The STATE of Florida, Appellee.
    No. 81-33.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal and Alan R. Dakan, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Lewis v. State (Fla.3d DCA 1981) (Case No. 80-1408, opinion filed December 22, 1981); Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981).


text:
    Wade LAREMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-250.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.

      Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck and Richard A. Sharp-stein, Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Appellant was instructed by the trial court to answer questions posed by the state during a deposition conducted in connection with a state investigation of appellant’s oral surgeon. Acting under advice of counsel, appellant declined to answer. He maintained that although he had been granted immunity from prosecution by the state, the court order requiring him to respond to questions concerning whether his doctor prescribed methaqualone violated his right to privacy. Appellant was held in contempt and sentenced to serve four months in the Dade County Jail. He contends on appeal that although his attorney was permitted to present legal argument, he was not afforded an opportunity to address the court. The court entertained the following discussion:

MS. COHAN: Mr. Laremore is aware that Your Honor has instructed him to answer the questions and has, in fact, refused to do so. At this time, I would ask Your Honor to hold him in contempt.
MR. LAREMORE: Can I state why?
MR. WINDSOR: I just want the Court to know, obviously, he is not hostile in the attitude that he is expressing to the Court. He’s concerned about that.
THE COURT: No hostility. He’s refusing to obey the order of the Court.
MR. WINDSOR: Those reasons have been stated.
THE COURT: I think it would be a lot better if you didn’t say anything.
MR. WINDSOR: Just for the record, I would object to any sentence being imposed at this time.
THE COURT: On what ground?
MR. WINDSOR: I don’t think — I’m not sure that the Court, at this point, has sufficient information before it to know how punitive the measure should be.
MS. COHAN: It’s direct contempt. It’s summarily punishable.
THE COURT: I’m aware and I’m going to sentence you to four months in the Dade County Jail for direct contempt of this Court. I’m going to stay execution of this sentence pending your right to take an appeal and during the pendency of the appeal, (emphasis added).

The trial court failed to afford appellant an opportunity to present evidence of mitigating circumstances. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975); Krathen v. State, 310 So.2d 381 (Fla. 4th DCA 1975); Weech v. State, 309 So.2d 246 (Fla. 4th DCA 1975); Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974); Moore v. State, 245 So.2d 880 (Fla. 2d DCA 1971); Fla.R.Crim.P. 3.830. We therefore reverse and remand for further proceedings consistent with this opinion.

Appellant’s remaining point lacks merit.

Reversed and remanded.

NESBITT, J., dissents.

      . Fla.R.Crim.P. 3.830:
      A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment


author: DANIEL S. PEARSON, Judge.

text:
    NISSIM HADJES, INC., Appellant, v. Lloyd HASNER, Asa B. Groves and Sam Hasner, Appellees.
    No. 81-284.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.

      Donald S. Rose, Miami, for appellant.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The trial court dismissed with prejudice the amended complaint of Nissim Hadjes, Inc. The complaint alleged, in substance, that the defendants, appellees here, paid their judgment creditor, The Meed Development Corporation, less than the full amount of the judgment in return for a satisfaction of judgment; that at the time of this transaction, as Meed and the defendants well knew, Meed was indebted to Hadjes in the exact amount of its judgment against the defendants and was insolvent save for its judgment against the defendants; and that Meed’s satisfaction of judgment constituted a fraudulent conveyance of an asset to the extent that it was given for inadequate consideration. Hadjes sought to have the fraudulent conveyance set aside, or, alternatively, to have judgment entered against the defendants on the theory that the difference between the amount of Meed’s judgment against the defendants and the amount paid to satisfy it constituted property of Meed constructively held by the defendants for Hadjes’ benefit.

The dismissal with prejudice was ostensibly based on the notion that Hadjes’ claims for relief were barred by res judica-ta. While it is true that prior to bringing the action below, Hadjes had moved to set aside the satisfaction of judgment in the very action and court in which the judgment was obtained, see n. 1, supra, the merits of Hadjes’ motion were never addressed by the Circuit Court in Palm Beach County, which expressly denied the motion “without prejudice to the plaintiff to pursue any other remedy to include, without limitation, the filing of a creditor’s bill.” It should be obvious that where a court expressly declines to consider or rule upon the merits of a motion, it has adjudicated nothing which would prevent subsequent litigation of the matters raised in the motion. See Rountree v. Rountree, 72 So.2d 794 (Fla.1954). Cf. Buckley Towers Condominium, Inc. v. Buchwald, 374 So.2d 550 (Fla. 3d DCA 1979), dismissed, 386 So.2d 634 (Fla.1980) (appellate court’s express refusal in earlier appeal to consider issue of legality of recreation lease does not bar, under doctrine of estoppel by judgment, subsequent action raising that issue). See also 50 C.J.S. Judgments, § 641 n. 74 at 74 (1947) (“A judgment which expressly excepts or reserves .. . the right to take further proceedings in respect of certain matters, is not a bar to a subsequent action on the matters so reserved.”). Compare AGB Oil Company v. Crystal Exploration and Production Co., 406 So.2d 1165 (Fla. 3d DCA 1981).

Of course, we would affirm the trial court if we found its dismissal with prejudice correct, even though its reason for the dismissal was wrong. See, e.g., Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980). The only other possible justification for a dismissal with prejudice here is that no matter how well pleaded, no cause of action lies. But that is not the casé.

A cause of action to set aside a fraudulent conveyance or to assert rights to a judgment debtor’s property in the hands of another does lie where an otherwise insolvent judgment debtor, itself a judgment creditor, fraudulently conveys by a satisfaction of judgment its rights to receive the full amount of the judgment for less than the full amount and the recipient of the satisfaction is party to the fraud. Cf. Michel v. American Fire & Casualty Company, 82 F.2d 583 (5th Cir. 1936) (release of solvent claim against insurance company by apparently insolvent debtor for less than full amount of claim done with knowledge of insurance company to defeat creditors of the insured presents jury question); First State Bank of Clermont v. Fitch, 105 Fla. 435, 141 So. 299 (1932) (complaint that insolvent debtor satisfied defaulted mortgage in exchange for quitclaim deed from mortgagor-owner to debtor’s wife for purpose of defrauding creditors from right to property states a cause of action). Even as a fraudulent transfer of property may take the form of a release or cancellation of a debt or claim, First State Bank of Clermont v. Fitch, supra, it may take the form of a satisfaction of judgment notwithstanding that in the absence of fraud the law permits a debt or obligation to be satisfied for less than the full amount. See § 725.05, Fla.Stat. (1979). See also 37 Am.Jur.2d, Fraudulent Conveyances, § 71 at 755 (1968):

“The forgiveness by a debtor of a debt which is due to him — for example, the collusive cancellation and surrender of a bond or note by a judgment debtor to his debtor, involving as between them the discharge of the latter from the obligation — is a fraudulent transfer which a judgment creditor may have set aside in equity and thereupon hold his debtor’s debtor to account for the amount of the debt.”

Accordingly, we reverse the order dismissing the amended complaint and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

      . Hadjes’ judgment against Meed was obtained in the same action in the Circuit Court in Palm Beach County in which Meed, as a third-party plaintiff, obtained a like judgment against Has-ner, Groves and Hasner.

      . If, as argued by the appellees, the allegations of the amended complaint failed to sufficiently allege a fraud, an equitable trust, or venue, such insufficiencies were capable of being remedied by amendment and could not justify a dismissal with prejudice. See, e.g., Ranger Insurance Company v. Travelers Indemnity Company, 389 So.2d 272 (Fla. 1st DCA 1980); Highlands County School Board v. K. D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla. 2d DCA 1978). Appellees’ further argument that the amount sought in the amended complaint was less than the minimal jurisdictional amount of the circuit court completely overlooks that Hadjes’ action, at least in part, was an equitable one. But even were it not, this deficiency was capable of being remedied by an order transferring the cause to the county court and would not warrant a dismissal with prejudice. See Osborne v. Delta Maintenance and Welding, Inc., supra.


text:
    Isaac LAWSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-362.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Bennett H. Brummer, Public Defender and Deborah Whisnant and William Castro, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Hoffman v. State, 397 So.2d 288 (Fla.1981).


text:
    Lawrence JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-392.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Rosario v. State, 406 So.2d 106 (Fla. 3d DCA 1981) (Case No. 81-856, opinion filed November 24, 1981); Santini v. State, 404 So.2d 843 (Fla. 5th DCA 1981); Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981); Scherer v. State, 366 So.2d 840 (Fla. 2d DCA 1979).


text:
    Marianne DEDMON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-450.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon Bale Derrevere, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the final judgment for the defendant, State Farm Mutual Automobile Insurance Company, notwithstanding a jury verdict for the plaintiff, Marianne Ded-mon, finding that as of January 6,1979, the date of the accident causing damage to Dedmon’s vehicle, State Farm’s policy insuring Dedmon against damage to her vehicle was in full force and effect.

Dedmon’s testimony that at her meeting with State Farm’s agent on January 2, 1979, she never discussed immediate cancellation of the policy, that the “information she was given” by the agent was that the form Dedmon was signing was to confirm the understanding that the policy would be cancelled as of January 30, 1979, to which date premiums had been paid, unless extended by the payment of an additional premium before then, viewed most favorably to her, see, e.g., Pedrajo v. Sloane, 405 So.2d 1058 (Fla. 3d DCA 1981); Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978), was sufficient to raise a jury question whether Ded-mon’s signing of this “change request” form created a valid unilateral contract cancel-ling her policy of insurance. The permissible inference which could be drawn from this testimony, if believed, is that Dedmon signed the document which purported to immediately cancel her policy under a mistake of fact caused by, or known to, State Farm’s agent and that, therefore, no binding cancellation occurred. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977); Coleman v. Holecek, 542 F.2d 532 (10th Cir. 1976); Chandler v. Aero Mayflower Transit Company, 374 F.2d 129 (4th Cir. 1967).

Since the jury, as was its right, found that Dedmon’s policy of insurance had not been cancelled by her signing of the “change request” form and was in full force and effect on the date of the accident, we reverse the judgment notwithstanding the verdict and the ensuing cost judgment with directions that judgment be entered for Dedmon on the jury’s verdict in the amount previously agreed upon by the parties, with appropriate interest, and, further, that costs and attorneys’ fees be assessed against State Farm.

Reversed and remanded with directions.

      . The parties agree that although the trial court directed a verdict in favor of State Farm before submitting the case to the jury, the effect of thereafter submitting the case to the jury for verdict and entering judgment for State Farm on the “directed verdict” was to enter a judgment n.o.v.

      . The Florida Supreme Court consolidated for review Allied Van Lines, Inc. v. McKnab, 331 So.2d 319 (Fla. 2d DCA 1976), and Allied Van Lines, Inc. v. Bratton, 330 So.2d 521 (Fla. 4th DCA 1976). The Court, holding that a party to a written contract cannot defend against its enforcement on the sole ground that he signed it without reading it, quashed the District Court’s opinion in Bratton, but holding that such a contract is voidable where other facts and circumstances reveal, for example, that the signer was misled as to the import of the document, or induced not to read it, affirmed McKnab.


text:
    Stephen T. GARRISON and Susan D. Garrison, his wife, Appellants, v. The CITY OF HOMESTEAD, Florida, a municipal corporation; Royall P. Terry, Jr.; Nicholas R. Sincore and Olaf Pearson, Appellees.
    No. 81-563.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Rash, Katzen, Kay & Pintado, Miami, for appellants.
    Seyfarth, Shaw, Fairweather & Gerald-son and Leonard A. Carson and Charles M. Rand, Tallahassee, for appellees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the dismissal of Count One on the authority of Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976); compare Ford Motor Credit Company v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979), and Count Two on the authority of McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Danford v. City of Rockledge, 387 So.2d 967 (Fla. 5th DCA 1980); Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla. 4th DCA 1979); Johnsen v. Carhart, 353 So.2d 874 (Fla. 3d DCA 1977).

Affirmed.


author: FERGUSON, Judge.

text:
    Willis L. DAVIS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 81-1641.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for respondent.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

By habeas corpus proceeding petitioner challenges the court’s authority to reimpose an original sentence after he has served the sentence as mitigated.

On September 15, 1973 petitioner, Willie Davis, was adjudicated guilty of robbery and possession of a firearm while engaged in a robbery. On December 14,1973 he was sentenced to ten years of imprisonment on each count, the sentences to run concurrently.

On February 13, 1974, exactly sixty days after sentencing, defendant filed a notice of appeal. On March 28,1974 while the appeal was still pending, the trial court granted defendant’s motion for mitigation, which motion had been filed on December 19,1973 and heard on January 21, 1974. The trial court reduced the sentence for robbery from ten years to five years imprisonment and reduced the sentence for firearm possession from ten years imprisonment to a five-year period of probation to run consecutive to the robbery sentence.

Petitioner was paroled on April 20, 1976 to complete a five-year period of probation. In June of 1977 he was arrested on new charges of battery and released on bond. He left the jurisdiction and was re-arrested in the state of Georgia on February 5, 1981 for violating the conditions of bond. The state did not prosecute the battery charges.

On April 28, 1981, petitioner’s probation was revoked for violation of the bond conditions and he was sentenced to five years imprisonment. Petitioner filed a motion to vacate the sentence and conviction for possession of a firearm while committing an offense on the grounds that the firearm possession offense involved the same criminal act as a necessary element of the offense of robbery. The trial court agreed that defendant could not be sentenced on the second charge, see James v. State, 399 So.2d 424 (Fla. 5th DCA 1981); Monroe v. State, 396 So.2d 241 (Fla.3d DCA 1981); Jenrette v. State, 390 So.2d 781 (Fla.3d DCA 1980), and granted the motion thereby vacating the five-year sentence which had been imposed for probation violation. After vacating the sentence for violation of probation, the trial court reimposed the ten-year sentence on the robbery charge. The sentence for the robbery charge had been mitigated to five years and already served by the defendant.

In reply to the writ respondent makes two arguments. It is first suggested that because the trial court in 1974 may not have had authority to rule on a motion to mitigate, reinstatement of the initial sentence on Count I was proper.

The ability of a trial court on finding violation of parole to revoke probation and impose any sentence which might have originally been imposed, Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980), clearly does not permit revocation of one illegal sentence in order to impose another illegal sentence. See, e.g., State v. Hegstrom, 401 So.2d 1343 (Fla.1981) (defendant may be convicted but not sentenced for both higher offense and lesser-included offense). Nor does the court’s jurisdiction extend so far as to permit reinstatement of the original sentence for the higher offense on the grounds of improper mitigation, see, e.g., State ex rel. Faircloth v. District Court of Appeal, 187 So.2d 890 (Fla.1966); Kelly v. State, 359 So.2d 493 (Fla. 1st DCA 1978), when the defendant has already served the improperly mitigated sentence and has not questioned the conviction or sentencing on that offense. Cf. Palmer v. State, 182 So.2d 625, n.2 (Fla.4th DCA 1966) (court has no power to amend sentence fully satisfied; generally an invalid sentence that has been served will not be set aside because question has become moot). Respondent further contends that the improper mitigation of sentence as to Count II which charges firearm possession, taints the sentence as to Count I charging robbery, because the trial court reduced the sentence to Count I in light of the consecutive period of probation imposed as to Count II. The argument of taint is without merit.

Petitioner is entitled to be and is hereby discharged.

      . We have jurisdiction under Art. V, § 4(b)(3), Fla.Const. and Fla.R.App.P. 9.030(b)(3). See, e.g., Dallas v. Wainwright, 175 So.2d 785 (Fla. 1965); Geter v. Wainwright, 380 So.2d 1203 (Fla.3d DCA 1980).


text:
    Edgar RESTREPO, Petitioner, v. The Honorable James HENDERSON, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Respondent.
    No. 81-2335.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for respondent.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Because the state failed to request a continuance alleging exceptional circumstances within the speedy trial period of Florida Rule of Criminal Procedure 3.191(d)(2), it was incumbent upon the trial court to grant defendant’s motion for discharge. State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978); State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977); State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976); see Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980); Klein v. Smith, 366 So.2d 1206 (Fla. 3d DCA 1979). Instead, nearly three months after the speedy trial period had ended, the trial court entered a nunc pro tunc order extending the time for commencing trial.

In view of our holding that further proceedings against the defendant would exceed the trial court’s jurisdiction, we quash the nunc pro tunc order and remand the cause with instructions to discharge defendant Restrepo. We assume it will be unnecessary for us to enter a formal writ of prohibition.


text:
    Ronald Allen SANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2608.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Ronald Allen Sands, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 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.


text:
    Gilbert SPANN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-5.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Gilbert Spann, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   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.


text:
    Helen Powell OLSEN, as Personal Representative of the Estate of Johnnie B. Olsen, Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, etc., Appellee.
    No. 78-2753/T4-345.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 1982.

      Ferrell & Jacobus, Melbourne, and Edna L. Caruso, West Palm Beach, for appellant.
    Thomas G. Kane of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   PER CURIAM.

In accordance with the Florida Supreme Court’s opinion, Fla., 406 So.2d 1109, rendered in this case on November 25,1981, we affirm the trial court’s ruling that the law of Illinois is to be applied to this case and we direct the trial court to apply that law in light of the opinion rendered in Alvis v. Ribar, 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886 (1981).

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: ORFINGER, Judge.

text:
    James Vincent ACQUAFREDDA, a/k/a Vincent Acquafredda and Joan Acquafredda, Appellants, v. Joseph MESSINA, Appellee.
    No. 81-105.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 1982.
    Carol Burlingham of Kaltenbach & Wilson, New Port Richey, for appellants.
    Michael T. Kovach, Inverness, for appel-lee.
   ORFINGER, Judge.

Appellants contend that the trial court erred in entering a temporary restraining order enjoining them from conveying certain of their assets during the pendency of this suit, an action brought on a promissory note. We reverse.

Appellee, as plaintiff, filed an action at law for damages, seeking recovery under a promissory note which was alleged to have been issued by defendants to plaintiff’s assignor, and assigned to plaintiff. In another count, plaintiff sought attachment of defendant’s assets, but the complaint was not verified and the request for attachment was apparently never acted upon by the court.

On the day set for trial, a continuance was granted at defendant’s request because plaintiff allegedly had not responded to a notice to produce. Later that day, based on a verified petition filed by plaintiff, requesting a prejudgment writ of attachment, or alternatively, a temporary restraining order without notice, the trial court entered a temporary restraining order, enjoining defendants from disposing of certain business assets pending the outcome of the action for damages. The essence of the motion on which the order was based was that the promissory note represented a debt due on certain business assets purchased by defendant from plaintiff’s assignor; that defendants were attempting to sell those assets and that if the defendants were not restrained from disposing of the assets or an attachment not be issued, plaintiff would be left with an uncollectible note and thus without remedy. Defendants did not move to dissolve the injunction, but filed their notice of appeal instead.

In the absence of a motion to dissolve, an appellate court may not review the factual matters upon which the temporary injunction was issued, but it will, nevertheless, review the legal sufficiency of the complaint and supporting affidavits which form the basis for its entry. Hotel-Motel Restaurant Employees & Bartenders Union, Local 339 of Broward County v. Black Angus of Lauderhill, Inc., 290 So.2d 479 (Fla.1974). See also, Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976).

No temporary injunction may be issued where the complaint upon which it is based sets out no ground for equitable relief. Blume v. Giles, 143 Fla. 615, 197 So. 344 (1940). No action for equitable relief can be maintained unless it falls within some acknowledged head of equity jurisprudence.' Thus where a complaint seeks an injunction to prevent a defendant from disposing of assets until an action at law on a debt can be concluded, no equitable cause of action is stated and no injunction should issue. B.L.E. Realty Corporation v. Mary Williams Co., 101 Fla. 254, 134 So. 47 (1931). An action for damages does not become an equitable action merely because a request for injunction is also made. Ramsey v. Lovett, 89 So.2d 669 (Fla.1956).

No equitable cause of action was asserted here upon which an injunction could issue. This was a traditional action at law; a suit on a promissory note. Additionally, there was an adequate remedy at law by attachment, which provides a prejudgment legal remedy to creditors who can attest to any of the statutory grounds for such relief. The fact that the plaintiff here asserted that he was unable to post the required attachment bond does not make such remedy unavailable or inadequate.

The temporary restraining order is vacated and set aside, and the cause is remanded for further proceedings consistent herewith.

Order VACATED, cause REMANDED.

DAUKSCH, C. J., and COBB, J„ concur.

      . We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(B).

      . Appellant also complains of the procedure followed below because on the morning when the continuance was granted, plaintiffs’ counsel advised defendants and the court that a verified petition for the restraining order would be filed and requested that it be heard later that day. The court announced that it would entertain the motion later that day. Defendants were not present or represented at the later hearing. The order granting the temporary restraining order recites that it is issued without notice. In the light of our decision, we need not address this issue.


text:
    Robert Lee BARKIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-355.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 1982.
    James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981).

ORFINGER, FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.


text:
    Otis G. BURLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-410.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Paul R. Adams, Jr., Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Section 947.16(3), Florida Statutes (1979), which authorizes a sentencing judge to retain jurisdiction to review certain parole release orders, does not violate the separation of powers provision of the Florida Constitution. Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981). Appellant’s contention that the trial judge did not state with individual particularity the justification for retaining jurisdiction under the statute was not preserved for review. Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981).

AFFIRMED.

ORFINGER, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.


text:
    Angel JUDGE, Appellant, v. STATE of Florida, Appellee.
    No. 79-2171.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

In May 1979, the Broward County Grand Jury indicted Angel Judge (who was then 17 years old) for robbery with a deadly weapon, a felony of the first degree punishable by imprisonment for a term of years not exceeding life imprisonment. In August 1979 Judge pleaded nolo contendere to the charge and preserved the right to raise on appeal the propriety of the circuit court’s failure to follow certain procedures set forth in Section 39.111, Florida Statutes (1979), before imposing a sentence of imprisonment for two and a half years.

In her sole point on appeal, Judge urges that the circuit court erred in not applying the disposition procedures of Section 39.111 to her, a juvenile convicted as an adult, relying primarily on State v. Cain, 381 So.2d 1361 (Fla.1980) as authority for that contention.

The state, following the circuit court’s lead, argues that for two reasons it is not mandatory that the circuit court follow the provisions of Section 39.111(6). First, it is not mandatory because Judge was not transferred from the juvenile division of the circuit court to the criminal division of that court, within the meaning of Section 39.02, Florida Statutes (1979), since the robbery charge was lodged against her by means of indictment, and an indictment is not a means of transferring jurisdiction of a juvenile defendant. The state cites Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980), in support of the foregoing position. Postell held that “A child who is indicted by a grand jury for an offense punishable by death or life imprisonment is not a child transferred within the purview of Chapter 39, Florida Statutes.” 383 So.2d at 1162. The court apparently overlooked Section 39.02(5)(d), which specifically includes indictment as one means of transferring a child from the juvenile division to the criminal division. See Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), approved in State v. Goodson, 403 So.2d 1337 (Fla.1981).

Second, the state argues that Judge waived her right to request sentencing under Chapter 39 during the plea conference. Our examination of the colloquy leads us to conclude a waiver did not occur and that Judge did reserve her right to appeal the nonapplication of Chapter 39.

We thus reject both arguments of the state and conclude that Judge was entitled to be sentenced pursuant to Section 39.-111(6), Florida Statutes (1979). In State v. Cain, supra, the Supreme Court stated:

The court must follow the procedure provided in subsection 39.111(6), Florida Statutes (Supp.1978), and must consider the criteria enumerated in subsection 39.-111(6)(c) 1-6 which in substantial part mirror the criteria the court is to consider in waiving juvenile jurisdiction in the first place. (Emphasis added).

Pursuant to State v. Goodson, 403 So.2d 1337 (Fla.1981), an indicted juvenile is considered “transferred” and should be sentenced under Chapter 39. The matter is thus remanded for further proceedings including resentencing.

REVERSED AND REMANDED.

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

      . (6) When a child has been transferred for criminal prosecution and the child has been found to have committed a violation of Florida law, the following procedure shall govern the disposition of the case:
      (a) At the disposition hearing the court shall receive and consider a predisposition report by the department regarding the suitability of the child for disposition as a child.
      (b) After considering the predisposition report, the court, in order to determine suitability, shall give all parties present at the hearing an opportunity to comment on the issue of sentence and any proposed rehabilitative plan. These parties shall include, if present: The parents or guardians of the child, the child’s counsel, the state attorney or assistant state attorney, representatives of the department, the victim or his representative, if any, representatives of the school system, and the law enforcement officers involved in the case.
      (c)Suitability or nonsuitability for adult sanctions shall be determined by the court before any other determination of disposition. The suitability determination shall be made by reference to the following criteria:
      1. The seriousness of the offense to the community and whether the protection of the community requires adult disposition.
      2. Whether the offense was committed in an aggressive, violent, premediated, or willful manner.

        3. Whether the offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
      4. The sophistication and maturity of the child, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.
      5. The record and previous history of the child, including:
      a. Previous contacts with the department, the Department of Corrections, other law enforcement agencies, and courts,
      b. Prior periods of probation or community control,
      c. Prior adjudications that the child committed a violation of law, and
      d. Prior commitments to institutions.
      6.The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child if he is assigned to juvenile services and facilities.
      (d) Any decision to impose adult sanctions shall be in writing, and it shall be in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions. Such order shall be reviewable on appeal by the child pursuant to s. 39.14.


author: DOWNEY, Judge.

text:
    James Michael LEBRUN a/k/a James Michael Debrun, Appellant, v. STATE of Florida, Appellee.
    No. 80-1824.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.

      Valentine Gabaldon, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, James Michael Lebrun, appeals from a judgment of conviction and sentence for trespass while armed and grand theft. The only question presented that necessitates discussion is appellant’s contention that the trial court committed reversible error in allowing the state to adduce the testimony of a codefendant’s lawyer that the codefendant had pled guilty and been sentenced.

Lebrun, and three other boys, Hendrix, Dailey and Molinare, were allegedly hunting wild hogs. Hendrix took Lebrun’s shotgun, went ahead of the others, and shot a cow and a calf. Later the cow was butchered and a hindquarter taken to Lebrun’s house, dressed out, and partially eaten. Le-brun gave a statement to the police describing his involvement in the affair.

Early in the trial the State called David Roth, Esquire, attorney for Dailey, who testified that he had represented Dailey; that Dailey had been subjected to the same charges as Lebrun and that Dailey had pled guilty and been placed on probation. He also testified the plea was not negotiated; it was a plea without any promises being made. Lebrun’s counsel was aware of what Roth would testify to so he objected to Roth’s taking the stand. He stated that he understood Roth would testify that “no deal” had been made with Dailey to exchange his testimony in this case for a plea. He contended that Roth’s testimony would be repetitious if Dailey also testified. He pointed out that if Dailey testified he was given a special deal that Roth’s testimony would only then become relevant.

The cases clearly state that it is generally improper for the State to disclose during trial that another has been convicted or has pled guilty. Thomas v. State, 202 So.2d 883 (Fla. 3rd DCA 1967). This rule is not to be confused with the rule allowing a defendant to show on cross examination that a codefendant has pled guilty or has similar charges pending against him. Fulton v. State, 335 So.2d 280 (Fla.1976). The latter rule, of course, bears on the witness’s credibility. Thus, in the present case it was improper for the State to adduce the testimony of the other defendant’s lawyer as to that defendant’s guilty plea. However, the objection made by defense counsel was not as to the proof of the other defendant’s guilty plea but rather to the cumulative effect thereof, because defense counsel anticipated that Dailey would himself take the stand and testify to the same thing. Therefore, we hold that the objection was insufficient to apprise the trial court of the point now being made on appeal, i.e., that the jury should not have been told of the other defendant’s plea to the same charges.

As a matter of fact, Dailey did testify subsequently to his part in the affair and to the fact that he had pled guilty. No objection was made at that time either.

For the foregoing reasons, we find the appellant has failed to demonstrate reversible error.

AFFIRMED.

ANSTEAD and DELL, JJ., concur.


text:
    Willie James PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 81-139.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Richard L. Jorandby, Public Defender, and Jack A. Goldberger, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged in four separate Informations with dealing in stolen property in violation of Section 812.019(1), Florida Statutes (1979). The trial court denied appellant’s motions to dismiss the Informa-tions whereupon appellant entered pleas of no contest to all four Informations, reserving his right to appeal the denials of his motions. Appellant was adjudged guilty on all Informations and sentenced to fifteen years on each, to run concurrently.

On appeal appellee concedes the Informa-tions were legally insufficient in Case Nos. 80-6932 CF and 80-6986 CF. Accordingly, we reverse the judgments and sentences as to those Informations. However, we consider the two remaining Informations which tracked the language of the statute to be legally sufficient and affirm the judgments and sentences in Case Nos. 80-6933 CF and 80-7014 CF.

AFFIRMED IN PART; REVERSED IN PART.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


text:
    William Donald ALVEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-156.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Pierce J. Guard, Jr., Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Laura R. Morrison and Sharon Stedman, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Although the evidence presented here was not quite as great as that reviewed by this court in Smith v. State, 340 So.2d 1216 (Fla. 4th DCA 1976), we nevertheless believe it was sufficient to sustain appellant’s conviction.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Lynn James MacIVER, Appellee.
    No. 81-338.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellee.
   OPINION ON REHEARING

PER CURIAM.

In a previous opinion we reversed the trial court’s order discharging the appellee under the speedy trial rule. Our decision was based, at least in part, on the obviously inadvertent but mistaken assertion in ap-pellee’s brief that the appellee was arrested on December 19, 1980, and charged on December 20, 1980. Although the record is not entirely clear on this point the parties appear now to be in agreement that appellee was arrested on December 19, 1979. Based on that date of arrest we believe the trial court was correct in concluding that the appellee was entitled to be discharged. See Lewis v. State, 357 So.2d 725 (Fla.1978).

The petition for rehearing is granted, our opinion of October 28, 1981 is withdrawn, and the order of the trial court is hereby affirmed.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


text:
    Philip C. BARNEY, Jr., Danford N. Barney, IV., and Elizabeth Barney Fooks, Appellants, v. Alanson Charles BROWN, III, Austin Dunham Barney, II, et al., Appellees.
    No. 81-437.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Garth A. Webster of Wakefield, Hewitt & Webster, Miami, for appellants.

      James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, Palm Beach for ap-pellee First National Bank in Palm Beach as personal representative of Estate of Elisabeth Freeman Barney, deceased.
    Mark C. Yellin, West Hartford, Conn., for appellee Alanson Charles Brown, III.
   PER CURIAM.

The trial court correctly granted appel-lees’ motion for summary judgment and we affirm on the authority of Estate of Murphy, 340 So.2d 107 (Fla.1976).

AFFIRMED.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C., Jr. (retired) Associate Judge, concur.


text:
    Royal Mack SUMMERVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 81-784.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, and Royal Mack Porter, a/k/a Summerville, Lake Butler, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981). We recognize that State v. Sylvester is in direct conflict with Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979).

LETTS, C. J., and HERSEY and DELL, JJ., concur.


author: ANSTEAD, Judge.

text:
    Edward Kenneth MULFORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-2095.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.

      James R. Hubbard of Beckham & McAli-ley, P.A., and Marc Cooper of Greene & Cooper, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION TO REVIEW ORDER DENYING BAIL ON APPEAL

ANSTEAD, Judge.

The appellant seeks reversal of a trial court order denying him bail pending appeal. The state contends that the issue of appellant’s entitlement to bail on appeal has been rendered moot because additional felony charges have now been filed against appellant and probable cause found that appellant committed those offenses. Under these circumstances, the state contends, Section 903.132, Florida Statutes (1981) and Florida Rule of Criminal Procedure 3.691(a) prohibit bail pending appeal. The appellant concedes that new felony charges have been filed but contends that Rule 3.691(a) and Section 903.132 apply only when new felony charges are filed and probable cause established before a motion for bail pending appeal is filed in the trial court.

Rule 3.691(a) and Section 903.132 provide that:

(1) No person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

By these provisions, it is apparent that the legislature intended to deny bail pending appeal to persons who have either been convicted of another felony or charged with another felony for which probable cause has been established. Kelly v. State, 362 So.2d 945 (Fla.1978); Greene v. State, 238 So.2d 296 (Fla.1970). Hence, if a conviction takes place or probable cause is established for other felony charges before or during the time the appeal is pending the defendant forfeits any entitlement to bail. The words “at the time request for bail is made” merely indicate the usual time when the statute and rule would be invoked; that is, when a trial court is considering a pending request for bail. In our view such words were not intended to limit the operation of the statute to new charges filed before a motion for bail is made. Indeed such a construction would raise serious equal protection problems if bail should be granted in one instance and denied in another where the only material difference in the two cases was the timing of the motion for bail. We do not believe the legislature intended the entitlement to bail to rest on such fortuitous circumstances.

Here, although probable cause had not been established and the trial court did not rely on such in denying appellant’s application for bail, it is now undisputed that the new felony charges have been filed and probable cause established. Under these circumstances we agree with the state that appellant is no longer entitled to bail while his appeal is pending.

Accordingly, the appellant’s motion for review is denied.

DOWNEY and HURLEY, JJ., concur.


author: RYDER, Judge.

text:
    John BURNETT, Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Appellee.
    No. 81-305.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1982.
    Lee S. Damsker of Gordon & Maney, and Mulholland, Anderson & McCue, Tampa, for appellant.
    Larry I. Gramovot of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellee.
   RYDER, Judge.

John Burnett appeals the summary judgment entered adverse to his claim for uninsured motorist benefits, alleging the lower court erred in applying a four-year limitation statute on the action. We reverse.

Appellant’s complaint, filed September 17, 1980, alleged he was involved in an automobile accident with an uninsured motorist on January 10, 1976. Appellant asserted that he had a policy of uninsured motorist insurance with appellee. Appellee answered, stating as a defense, that the action was governed by the four-year statute of limitations applicable to torts. Section 95.11(3)(a), Florida Statutes (1979). Appellee’s motion for summary judgment on that ground was granted by the court below.

We hold that the court erred in applying a four-year limitations period to apply to the action. The rights and obligations of the parties below were governed by contract law, since those rights and obligations arose out of an insurance contract. Hartford Accident and Indemnity Co. v. Mason, 210 So.2d 474 (Fla. 3d DCA 1968). That the uninsured motorist stands in a tort relationship to appellant does not change the fact the action below arose out of an insurance contract between the parties. Thus, only the five-year limitation period specified by section 95.11(2)(b) applies. We note that the Fifth District Court of Appeal has reached a result consistent with the result of our decision above in Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So.2d 846 (Fla. 5th DCA 1981).

The summary judgment below is REVERSED and the case REMANDED for further proceedings.

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


author: PER CURIAM. MILLS, Judge,

text:
    George H. LAURENDINE and his wife, Donna F. Laurendine, Appellants, v. Howard MARKHAM and his wife, Meloria Markham, Appellees.
    No. MM-396.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, Ocala, for appellants.
    Harry C. Duncan of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.
   PER CURIAM.

There is substantial competent evidence to support the trial court’s finding that the true property line lies where established by the Veal/Fugate surveys. We therefore do not reach the other issues posed on appeal.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and DOW-NEY, JAMES C., Associate Judge, concur.

MILLS, J., specially concurs with opinion.

MILLS, Judge,

specially concurring:

I agree with the majority’s result and would affirm but not for the reason stated by the majority.

In 1947, W. H. Markham employed Fu-gate, a surveyor, to divide an east one-half section of land into four equal portions. Subsequently, Markham placed each of his four sons in possession of one of the parcels. Vernon Markham occupied the north one-half of the northeast one-quarter of the section. Howard Markham occupied the south one-half of the northeast one-quarter. Fences were set along the lines established by the Fugate survey. Title to each portion of the land previously owned by Vernon was ultimately conveyed to the Lauren-dines. After purchasing the property, the Laurendines employed Croft to survey their land. Croft determined that the fence line between the Laurendines’ property and Howard’s land averaged 140 feet north of where the true boundary was located. Lau-rendine then filed suit seeking ejectment and recovery of land. The trial court subsequently entered an order finding the evidence supported the defendant’s claim to title based on adverse possession and boundary by agreement. I would affirm the trial court’s order because the evidence supports Markham’s title based on boundary by acquiescence. Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976).

Establishment of a boundary by acquiescence has long been recognized in Florida. See Acosta v. Gingles, 70 Fla. 13, 69 So. 717 (1915). In Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968), we stated:

We believe, and so hold, that title and boundary line between adjoining property' may be resolved by a line agreed upon to be the true boundary line, regardless of the description contained in the deed as related to the earliest government survey lines, by estoppel or acquiescence or by written agreement, verbal agreement, or even by implied agreement, if the conduct of the parties is such as to support the same.

Id. at 64.

In this case, the evidence indicates the fence line was established in 1948 and neither of the parties nor their predecessors in interest complained until Croft surveyed the property in 1977. Additionally, Vernon and Howard Markham testified they never questioned the validity of the fence line as the boundary and that they each occupied and farmed the portion of the land they possessed. The facts presented state a classic case of boundary by acquiescence. Watson v. Godwin, 259 So.2d 746 (Fla. 1st DCA 1972).


author: MILLS, Judge.

text:
    Jasper N. DANIELS, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LEON COUNTY, Florida, and American Liberty Insurance Company, Appellees.
    No. AB-89.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellant.
    Steve M. Watkins of Watkins, Hill & Marts, Tallahassee, for appellees.
   MILLS, Judge.

The deputy concluded that Daniels was neither permanently totally disabled nor permanently partially disabled. Daniels contends the deputy erred.

We affirm the deputy’s denial of permanent total disability based on his finding of an inadequate work search because this is supported by competent substantial evidence.

We reverse the deputy’s denial of permanent partial disability because either he failed to consider evidence of impairment which was presented to him or he misconstrued this evidence.

In his order, the deputy found that Dr. Holland gave Daniels no permanent physical impairment. The record reveals that the doctor stated that without the pre-ex-isting arthritis he would expect Daniels to recover from the accident caused back sprain with a maximum of fifteen percent disability which could go higher. The deputy overlooked or misconstrued this testimony.

We reverse and remand the deputy’s ruling on permanent partial disability for his consideration of Dr. Holland’s testimony concerning his permanent impairment rating and, in his discretion, the deputy may take additional testimony from Dr. Holland for the purpose of clarifying this issue.

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


text:
    RED OAK FARMS, INC., and American International Adjustment Company, Inc., Appellants, v. Patricia Lee SCOTT, Appellee.
    No. AB-134.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    Jean A. Bice of Pattillo, MacKay & MeKeever, Ocala, for appellants.
    Frank C. Amatea, Ocala, for appellee.
   MILLS, Judge.

The deputy awarded Scott permanent total disability compensation. The employer/carrier contend the deputy erred because there was neither evidence of a job search by Scott nor excusal of the job search by the deputy. We agree and reverse.

There is no evidence that Scott conducted a job search after reaching maximum medical improvement. To qualify for permanent compensation in excess of her 15% impairment rating, Scott was required to make some effort to obtain employment within her physical limitations. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Brevard County School Board v. King, 378 So.2d 1312 (Fla. 1st DCA 1980).

The deputy did not find that Scott was so physically disabled as to make a job search futile or unnecessary. Under such circumstances, a job search is not required to establish total loss of wage earning capacity. Chicken ’N Things v. Murray, 329 So.2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976); Caruso v. Crown Liquors, Inc., 379 So.2d 1317 (Fla. 1st DCA 1980).

The pertinent findings of the deputy’s order are as follows:

I find that the claimant is permanently and totally disabled. I base this finding on the claimant’s education, age, prior work experience and the physical limitations placed upon her by her treating physicians. The restrictions of no bending, lifting, stooping, prolonged sitting, standing, or walking would preclude the claimant from normal full-time employment when considered in conjunction with the other above mentioned detriments.

These findings were mere clerical reiterations of the wage earning capacity loss criteria which was condemned in Moses v. Lin Drake Farm, et al., IRC 2-3193, 11 July 1977. No further explanation was given and the order failed to specify what “the other above mentioned detriments” were.

We reverse and remand this case to the deputy for the entry of an order (1) specifying the reasons for his finding Scott permanently and totally disabled and (2) stating whether he excuses Scott from making a job search and,- if excused, the reasons why excused, both without taking further testimony.

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


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

text:
    Rejoice BRAZIL, Appellant, v. SCHOOL BOARD OF ALACHUA COUNTY and Lumbermen’s Mut. Casualty Co., Appellees.
    No. AC-188.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    Thomas W. Davis, Law Offices of Barton, Cox & Davis, Gainesville, for appellant.
    Barry D. Graves, of Ritch & Graves, P. A., Gainesville, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Claimant appeals an order of the deputy denying him interest on past-due permanent partial disability benefits paid by the employer/carrier only after an unsuccessful appeal to the Industrial Relations Commission of the original workers’ compensation award. The order before us also denied claimant penalties for the employer/carrier’s failure to pay this interest at any time after the appellate decision. We reverse.

On March 16, 1978, the deputy awarded claimant permanent partial disability benefits for a 1974 compensable injury based on a 50 percent loss of wage earning capacity. Challenging any compensation above the 20 percent physical impairment rating, the employer/carrier appealed the award. The Industrial Relations Commission affirmed. The employer/carrier then, on February 5, 1979, promptly paid claimant 59 weeks of back benefits due, but refused to pay interest on this amount, which was demanded by the claimant and pursued before the deputy-

Once the Industrial Relations Commission affirmed the award of the basic compensation benefits, the employer/carrier was required to pay them, with interest from the date they should have been paid. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955). As the Supreme Court pointed out in Parker, an interest award is not a penalty but compensatory damages to the worker for the wrongful withholding of basic benefits during the period the worker sorely needed those funds and may have borrowed money repayable with interest to support himself.

In this case, some 12 weeks of benefits were due when the deputy entered his original order in March 1978. The interest allowance on benefits ultimately found due at the time of that order and thereafter was not tolled during appellate review. Stone v. Jeffres, 208 So.2d 827 (Fla.1968); Pinellas County School Board v. Rapson, 401 So.2d 907 (Fla. 1st DCA 1981). The interest on back benefits due at the time of the order and each biweekly installment due thereafter accrued from the appropriate due date at the general statutory rate of 6 percent for delinquencies arising before July 1, 1978. Section 687.01, Fla.Stat. (1977). Interest on biweekly benefits due on or after July 1, 1978 and before February 5, 1979, accrued from the appropriate due dates at a rate of 12 percent under the specific workers’ compensation interest provision in § 440.20(7) (1978 Supp.). Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980). On remand the deputy will determine this lump sum of interest that was due at the time the original order was affirmed on appeal. Since that lump sum of interest was not paid when the past due benefits were paid on February 5, 1979, ending the accrual of interest on the underlying benefits, claimant continued to be entitled to interest at 12 percent on this lump sum unpaid, beginning on the date it became fixed by payment of the underlying benefits and continuing through this appeal to the date of full payment. § 440.20(7), Fla.Stat. (1978 Supp.); § 440.20(9), Fla.Stat. (1981). On remand the deputy will also calculate and award this further interest.

In addition to unpaid interest, claimant seeks a penalty under § 440.20(6) (1978 Supp.) for the employer/carrier’s failure to pay the lump sum of interest, accrued on the underlying benefits paid February 5, 1979, within 20 days of the IRC’s affirmance of the basic compensation order. We agree that the worker is entitled to a 20 percent penalty on the amount the deputy calculates is due as interest. As claimant points out, a penalty should be imposed to prevent employers from refusing to pay interest when due in the hope the amount involved is too small for a claimant to pursue. See also Torres v. Eden Roc Hotel, 238 So.2d 639, 642 (Fla.1970). The 20 percent penalty is to be assessed not only on the amount of interest that should have been paid when the underlying benefits were paid, or in any event within 20 days after the IRC order became final, but also on the additional interest now derived from the carrier’s failure, from then until now, to pay the interest debt then accrued.

In other words, we hold that interest accrued on due and unpaid compensation benefits until those benefits were paid; that when the award of underlying benefits was affirmed by the IRC, accrued interest was immediately payable in a lump sum as additional compensation, which itself now draws interest because it is still not paid; and that, because that interest debt was and is a still-growing sum payable under the terms of Chapter 440, as a result of the IRC affirmance, the 20 percent penalty is to be assessed on the amount finally to be fixed as the carrier’s interest obligation.

Therefore, the deputy’s order denying interest and penalties is REVERSED and REMANDED for calculation of interest and penalties due in accord with this opinion. Since these amounts should have been awarded, the deputy’s denial of attorney’s fees below is also reversed, and fees for those services, excluding this appeal which we have separately compensated, will be awarded on remand.

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


text:
    SILVER SPRINGS, INC. and Kemper Insurance Group, Appellants/Cross-Appellees. v. Candy SCARDO, Appellee/Cross-Appellant.
    No. AC-276.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    Richard H. Weisberg of Cooper & Riss-man, P.A., Orlando, for appellants/cross-appellees.
    Bruce R. Raster of McClellan, Raster & Vostrejs, P. A., Ocala, for appellee/cross-appellant.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier in this workers’ compensation case appeal the deputy’s award of temporary total disability benefits beginning September 4, 1980. We reverse the award of total disability benefits after October 21, 1980, because there is no medical evidence that claimant was completely unable to work after that date, and she did not then make any conscientious effort to return to work. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). We remand the case, however, for consideration of whether any temporary partial wage-loss benefits may be due after October 21.

The deputy also incorrectly calculated claimant’s average weekly wage under Section 440.14(1), Florida Statutes (1979). In the 13-week period just before her injury, claimant worked full-time only three weeks and part-time for the remainder of the period. She considered herself a part-time employee, as did her supervisor. There was no evidence that she expected to work full-time hours or increase her rate of pay in the future. The deputy, however, in calculating her average weekly wage, averaged only her earnings during the three weeks of full-time employment. That calculation produced a higher average weekly wage than was justified.

Since 1941, the Legislature has prescribed wages earned during the entire 13-week period prior to the injury as the preferred compensation rate base, unless using that particular period is unfair or unreasonable. Waymire v. Florida Industrial Relations Commission, 174 So.2d 404, 407 (Fla.1965). Therefore claimant’s average weekly wage should be calculated by averaging the wages she did earn during the 13-week period, full- and part-time. We recognize that § 440.14(1)(a) does not in its unvarnished state directly apply to claimant, because that section is specifically applicable to the worker who worked substantially full-time for 13 weeks before the injury. But where a part-time worker has worked in that worker’s typically part-time fashion for substantially all of those 13 weeks, we see no reason why the average wage should not be calculated in the way prescribed by Section 440.14(1)(a). That would appear to be a proper application of Section 440.14(1)(f), which says a part-time work status should be considered in arriving at an average weekly wage. If a 13-week work history exists, the statute, in our opinion, directs the deputy to use it as the wage base period with any other appropriate adjustments in its use needed for part-time work status.

From our study of the legislative history of Section 440.14(1) and cases interpreting it, it seems that the part-time worker provision was not added to displace the basic preferred methods of calculating a wage base, but for the rather obvious purpose of preventing a part-time worker from collecting compensation based on the wages of a full-time worker. See J. J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 560 (Fla.1962). The part-time provision was added to the act in 1953 after the Supreme Court used one of the basic calculation methods for full-time workers to pay compensation based on full-time wages to a part-time worker. Gibbs, supra. Since § 440.14(1)(f) and its predecessor do not direct the deputy to consider part-time status in any particular manner, the only meaningful interpretation of the provision is that it should modify the application of each of the basic compensation methods described in Section 440.-14(1)(a)-(d). For a similar interpretation of the statute in its earlier form, see Wolf v. City of Altamonte Springs, 148 So.2d 13, 17 (Fla.1962) (J. Taylor, dissenting).

The temporary total disability benefits awarded properly from September 4 to October 21,1980 should be calculated in accord with this opinion. In determining whether claimant is eligible for any partial wage-loss benefits under Section 440.15(4), the deputy should use the same recalculated average wage.

On cross-appeal, we find that the deputy’s finding that the carrier did not act in bad faith was premature. It is not entirely clear from this record whether the claimant sought attorney’s fees under § 440.34(2)(b) (1979) by alleging the carrier’s bad faith handling of her claim. It is clear that the bad faith issue was not specifically litigated as a separate issue before the deputy, as required. See Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.

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