author: McCORD, Judge.

text:
    Jerry TOSH, Appellant, v. STATE of Florida, Appellee.
    No. AJ-310.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 17, 1983.

      Seldon Yavitz, Miami, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from a judgment and sentence of appellant for conspiracy to traffic in cannabis. We affirm.

The State’s primary witnesses against appellant were Darnell and Watson, with whom the State had entered into plea bargains by which each pled guilty and the State agreed to recommend to the court a sentence of one year probation for each in exchange for their testifying against appellant. In the course of the trial Wayne Hicks, an investigator for the State Attorney’s Office, was qualified as an expert witness on narcotics investigations. His testimony constituted an explanation of bale lists to the jury and in addition he was asked the following question by the prosecuting attorney:

Q All right, now, as a person who has conducted numerous narcotics investigations; in the area of plea agreements, what are plea agreements used for?

Defense counsel’s objection to the question on the ground that the witness was not competent or capable of testifying to such was overruled. The witness then gave the following answer:

A Plea agreements are used, in narcotics cases, to attempt to go up the ladder and get people that are heavily involved, the bigger people. You use the smaller people—

Defense counsel renewed his objection and moved for a mistrial, stating: “This is getting far afield.” The court denied the motion for mistrial. The State then asked:

Q In this case, Mr. Hicks, what were the plea agreements used for?

He gave the following answer:

A The plea agreement is used to elicit testimony from people involved.

To the question, “What kinds of people?”, he answered:

What, in our investigative opinion, was people that were not as heavily involved, and not as big.

Defense counsel again objected and moved for mistrial, the motion being denied. The court then announced, “Let’s get back to the facts of this case.”

Had the foregoing testimony of Hicks been given without provocation by the defense attorney, we would agree that such probably would have been reversible error. Here, however, defense counsel opened the door to this testimony in his opening statement to the jury where he vigorously attacked the motives of the State in entering into the plea bargains with Darnell and Watson, painting these two witnesses as the real criminals and inferring that the State only entered into the plea agreements to frame his client Tosh, an innocent man, and allow the real criminals to walk out on probation. Had defense counsel confined himself to an attack upon the credibility of the witnesses rather than to attack the State for entering into the plea agreements by the State Attorney’s Office, he would be on firm ground. The State, however, was not required to sit silently by and accept the attack without .clarifying and explaining their general purpose for entering into such agreements. It remained for the jury to determine from the evidence whether or not the defendant was guilty of conspiracy to traffic in cannabis or was an innocent victim of a frame-up between the State and the two witnesses. The defense attorney made his charged frame-up an issue before the jury by the nature of his opening statement. Appellant relies upon U.S. v. Hall, 653 F.2d 1002 (5th Cir.1981). In Hall, however, the federal agent’s testimony regarding its investigative procedures was not put in issue by the defense as it was here. In Hall the federal agent’s testimony was an affirmative part of the prosecutor’s ease while here Hicks’ explanation was in response to the attack by defense counsel on the motives of the State.

Appellant further contends that the trial court erred in refusing appellant’s request for jury instruction on the offenses of conspiracy to possess felony and misdemeanor amounts of cannabis where appellant was charged with conspiracy to traffic in over 100 pounds of cannabis. Appellant bases this contention on the Florida Standard Jury Instruction schedule, which provides that where trafficking in cannabis in violation of Section 893.135(1)(a) is charged, possession of cannabis in violation of Section 893.13(1)(e) is a Category 1 lesser included offense. Here, however, the offense charged was not trafficking in cannabis, but it was conspiracy to traffic in cannabis. The Standard Jury Instructions do not list lesser included offenses of conspiracy to traffic. Trafficking may be proved in numerous ways — either through sale or delivery, through manufacture or through bringing cannabis into the state. Here, the indictment charging conspiracy to traffic does not delineate in which of these respects appellant conspired to accomplish such trafficking. Thus, the State was not required to show under the indictment that appellant conspired to possess cannabis in order for it to prove that appellant conspired to traffic in cannabis. Thus, conspiracy to possess cannabis was neither a Category 1 nor a Category 2 lesser included offense. See In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Florida Supreme Court Case Nos. 56,734 and 58,799, filed April 16, 1981, 6 FLW 305; Brown v. State, 206 So.2d 377 (Fla.1968).

We have considered appellant’s remaining point and find it to be without merit.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Frankie Darlene “Dolly” BAGGETT, Appellant, v. STATE of Florida, Appellee.
    No. AJ-439.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 11, 1983.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

This is an appeal from judgment of guilt and sentences for the crimes of robbery and aggravated assault. We affirm.

Upon trial of a two-count information charging armed robbery and kidnapping, appellant was convicted by a jury of armed robbery as charged in Count I and of aggravated assault as a lesser included offense to the kidnapping charged in Count II. Appellant received separate sentences, to be served consecutively. Because appellant used a firearm in the commission of her crimes, separate consecutive mandatory minimum terms of three years were imposed pursuant to § 775.087(2), Fla.Stat. (1979).

In urging reversal, appellant first contends that because aggravated assault is a lesser included offense to armed robbery, and because her two crimes were committed in the course of a single criminal transaction, the imposition of separate sentences was contrary to the provisions of § 775.021(4), Fla.Stat. (1979). We cannot agree.

Aggravated assault may be an assault with a deadly weapon without intent to kill or it may be an assault with intent to commit a felony. § 784.021(1), Fla.Stat. (1979). While it is true that the offense of aggravated assault can be a lesser included offense to both armed robbery and kidnapping, the jury in this case expressly found that the assault committed by appellant was a lesser included offense under Count II of the information charging kidnapping. By this verdict, the jury determined that the assault committed by appellant was not a lesser included offense to the armed robbery she committed. Therefore, the trial judge did not err in imposing separate sentences for the two crimes.

Appellant’s second contention is that the trial judge erred in imposing mandatory minimum sentences pursuant to § 775.087(2), Fla.Stat., since the evidence was insufficient to establish that appellant had actual, as opposed to vicarious, possession of a firearm during the commission of the crimes. This contention is without merit. There was more than adequate evidence to support the jury’s determination that appellant had actual physical possession of a firearm from time to time during the pendency of the subject criminal episode.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.

      . § 775.021(4), Fla.Stat. states in part:
      (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses ....


author: SHIVERS, Judge.

text:
    Mackie Roy ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. AJ-460.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Allen appeals his conviction and sentence for attempted first degree murder and attempted robbery with a firearm. He argues that the trial court erred in instructing the jury that it could not acquit the defendant on the ground of self-defense if it found that the defendant was being arrested by a law enforcement officer, and if defendant knew that the man was an officer or he reasonably appeared to be one. Although we agree with appellant that the instruction given is not a correct statement of the law, we find this error harmless on the record sub judiee and affirm.

Florida standard jury instruction (criminal) 3.04(d) is the standard jury instruction on self-defense. It states, among other things:

A person is never justified in the use of any force to resist an arrest. Therefore, you cannot acquit the defendant on the ground of self-defense if you find the following facts have been proved:
1. The defendant was being arrested by (victim).
2. The defendant knew (victim) was a law enforcement officer or (victim) reasonably appeared under the circumstances to be a law enforcement officer.

Id. at page 43. This standard jury instruction is not a totally correct statement of Florida law. It is based on section 776.-051(1), Florida Statutes (1981). In Inves ter v. State, 398 So.2d 926 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982), we held that section 776.051 must be read in pari materia with section 776.012, Florida Statutes, which justifies the use of force in certain circumstances. Ivester states that an individual may defend himself against unlawful or excessive force, even when being arrested. Id. at 930. This holding directly conflicts with the language of the jury instruction sub judice which states that force may never be used. Therefore, the use of this standard jury instruction is error.

In the instant case, however, this error is harmless. The evidence most favorable to the defendant presented at trial was that contained in the defendant’s own tape recorded statement. In his statement, the defendant admitted that he was reaching for his gun at the time the officer hit defendant’s hand with the flashlight. The record is devoid of any evidence from which a jury could conclude that unlawful or excessive force was being used by the officer. AFFIRMED.

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

      . Section 776.051(1), Florida Statutes (1981) states:
      A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, .to be a law enforcement officer.

      . Section 776.012, Florida Statutes (1981) states:
      A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.


author: PER CURIAM.

text:
    CITY OF FT. LAUDERDALE, Florida, Appellant, v. STATE of Florida, DIVISION OF LOCAL RESOURCE MANAGEMENT, DEPARTMENT OF VETERAN AND COMMUNITY AFFAIRS, Appellee.
    No. AK-8.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.

      Robert M. Rhodes, Terry E. Lewis and James C. Hauser of Messer, Rhodes & Vick-ers, Tallahassee, and Donald R. Hall, City Atty., Fort Lauderdale, for appellant.
    C. Laurence Keesey, Tallahassee, for ap-pellee.
    Earl G. Gallop of Milledge & Hermelee, Miami, for amicus curiae City of Tamarac.
   PER CURIAM.

By this appeal the City of Ft. Lauderdale contends that the Department of Veteran and Community Affairs, Division of Local Resource Management (Division) erred in its binding letter of interpretation by determining that the City’s proposed 1,000 foot western extension of an existing 6,000 foot east-west runway at the Ft. Lauderdale Executive Airport does not possess vested rights status. See § 380.06(18), Fla.Stat. We disagree and affirm.

Specifically, the City argues that various actions on its part constitute “authorization to commence development” under the terms of section 380.06(18). Second, it argues that the Division may not look to FAA approval of the airport extension as constituting the only requisite authorization to commence development. Addressing the latter argument first, we agree that FAA approval is not the only way by which a runway extension may obtain vested rights status. Viewed in the factual context of this case, however, FAA approval would have been an appropriate authorization, and there may have been others about which we will not speculate.

As to the former argument, we find nothing in the City’s various actions prior to July 1, 1973, (the effective date by which vested rights status must have accrued) that amounts to an “authorization to commence development.” The resolutions of 1967 and 1969 do not constitute approval to do anything and are merely advisory in effect with no legally binding status. Second, the mere act of rezoning does not constitute such an authorization, as it has long been held that property owners do not have a vested right in zoning ordinances. City of Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla.1954); Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). Third, the City’s purchase of the land itself does not vest any rights in the runway extension, for the record affirmatively establishes that the City’s purpose in purchasing this property was to provide additional “clear zone” for the then existing runway. The mere fact that the City may have envisioned a different use for the land at some future date, without more, cannot endow that later development with vested rights status. There being no concrete evidence of any authorization to commence development by July 1, 1973, we find that the City has not demonstrated its entitlement to vested rights status for the runway extension.

We have considered the City’s contentions that the Division’s order constitutes an invalid rule under Chapter 120, Florida Statutes, and denies to the City equal protection under the law and find them to be without merit.

AFFIRMED.

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


author: JOANOS, Judge.

text:
    CONVALESCENT SERVICES OF WEST PALM BEACH, INC., d/b/a Lakeside Health Center, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AL-338.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Karen L. Goldsmith of Dempsey & Slaughter, Orlando, for appellant.
    Robert P. Daniti, Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellee.
   JOANOS, Judge.

Appellant attacks the constitutionality of section 400.111(1), Florida Statutes (1980), which was the basis of a Department of Health and Rehabilitative Services final order imposing a late penalty of $6,499.00.

To be constitutionally permissible, a classification must apply uniformly to all persons within the class and bear a reasonable relationship to a legitimate state interest. Haber v. State, 396 So.2d 707 (Fla.1981). We have reviewed section 400.-111(1), Florida Statutes (1980), and find no constitutional infirmities. Singling out long-term care facilities, as a class, is rationally related to the state’s interest in insuring the safe and adequate care, treatment and health of persons in such facilities. All long-term care facilities within the class are subject to the penalty provision and the penalty provision is a reasonable means to make sure that these long-term care facilities comply with the standards of Chapter 400, Florida Statutes (1980). However, the penalty was incorrectly computed on sixty-seven rather than sixty-six days, resulting in an overcharge of $97.00.

Accordingly, section 400.111(1), Florida Statutes (1980), is held to be constitutional, but the final order is remanded for correction consistent with this opinion.

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


text:
    Johnny Mack WALLS, Appellant, v. ASHLAND OIL, INC., a corporation, Warren Brothers Company, a corporation, Insurance Company of North America, a corporation, and an unknown insurance company, a corporation, and State of Florida Department of Transportation, Appellees. DEPARTMENT OF TRANSPORTATION, Appellant, v. Johnny Mack WALLS, Thomas Allen Bolig, and The Home Indemnity Co., Appellees. ASHLAND OIL, INC., Warren Brothers Company and Insurance Company of North America, Appellants, v. Johnny Mack WALLS, Appellee.
    Nos. TT-446, AF-323 and AF-324.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Law Office of Harold Silver and John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helping & Austin, Gainesville, for Johnny Mack Walls, appellant-appellee.
    Alan E. DeSerio, Kenneth M. Towcimak and John H. Beck, Acting Gen. Counsel, Dept, of Transp., Tallahassee, for Dept, of Transp., appellee-appellant.
    John T. Allen, Jr., St. Petersburg, for The Home Indem. Co., appellee.
    Stephen A. Hould and Richard G. Rum-rell of Smathers & Thompson, Jacksonville, for Ashland Oil, Inc., Warren Brothers Co. and Ins. Co. of North America, appellees-appellants.
   PER CURIAM.

In this case we have consolidated three related appeals from orders of the circuit court regarding the construction and application of two releases in a personal injury action. Case No. TT-446 presents an appeal from an order granting summary judgment in favor of defendants on the basis of the general language contained in the first release and the invalidity of the second release. Cases No. AF-323 and AF-324 involve appeals from a final declaratory judgment rendered in favor of third-party plaintiffs based upon the intent of Third-Party Defendants Thomas A. Bolig and Home Indemnity Co. in executing the original release.

The circuit court’s order granting summary judgment in Case No. TT-446 was consistent with the law in effect at that time, as set forth in Hurt v. Leatherby Insurance Co., 354 So.2d 918 (Fla. 4th DCA 1978). However, after the lower court’s order dated October 25, 1978, the Florida Supreme Court rendered Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla.1980), which held that whether a general printed release is effective to discharge persons other than specifically named tortfeasors poses a question of fact. This latter case quashed the decision of the Fourth District Court of Appeal, reversed the summary judgment and remanded for proceedings consistent with the opinion. Relying upon the authority of the supreme court in Hurt v. Leatherby Insurance Co., we likewise reverse the summary judgment entered by the court below and remand the instant cause for an evidentiary hearing to determine the intent of the parties in executing the initial release.

In addition, we affirm the final declaratory judgment entered by the circuit court in Cases No. AF-323 and AF-324.

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

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


text:
    Lance Edwin CILI, Appellant, v. The STATE of Florida, Appellee.
    No. 82-970.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Rehearing Denied Jan. 24, 1983.
    Carlton & Carlton, Lakeland, and Thomas Wills, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Affirmed. United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Savoie v. State, 422 So.2d 308, n. 2 (Fla.1982); Alcorn v. State, 422 So.2d 341 (Fla. 3d DCA 1982) (per curiam), and cases cited; Grimes v. State, 416 So.2d 488 (Fla. 1st DCA 1982).


author:
PER CURIAM.
      SHAW, Judge, MILLS, Judge, BOOTH, Judge,

text:
    Amelia GOMEZ, Appellant, v. Jack Steinberg NECKWEAR, Appellee.
    No. YY-423.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      Edward A. Sirkin, H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellant.
    Russell A. Ortmayer, of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellee.
   PER CURIAM.

In this workers’ compensation litigation arising from a May 1977 industrial accident, claimant appeals from Deputy Commissioner Tomlinson’s order recognizing claimant’s ten percent permanent partial disability, and ordering appropriate benefits, but denying claimant additional benefits based on loss of wage earning capacity and impairment due to claimant’s psychiatric difficulties.

The court by a decisive majority vote, and to maintain uniformity in the court’s decisions, ordered that this case be determined en banc, Fla.R.App.P. 9.331(a), as requested by the three-judge panel originally assigned.

Upon considering the matter at some length, we conclude that this case presents an occasion for deference to the deputy’s permissible findings and conclusions. The deputy’s order recites and interprets the evidence, makes findings, and denies compensation for wage earning capacity loss upon evidence which we find adequate, and denies compensation for permanent psychiatric impairment on the ground those problems “do not arise out of the industrial accident” but were related only to a subsequent event, in this case her employer’s denial of further employment when she reported back to work. That finding presents a close question of interpreting a physician’s testimony. No doubt some of the judges now deciding this appeal, if we were instead deputy commissioners, would have viewed the evidence differently. But considering the deputy’s decisive finding with a disposition to sustain it exactly as we would view a jury’s verdict or a circuit judge’s findings on contested facts and disputed inferences, we must affirm the deputy’s decision as being a permissible view of the evidence.

This claimant had a long and complex history of various troubling ills. She was subject to depression long before her industrial accident in May 1971. When she fell and was hurt on the job, psychological ramifications were inevitable and did in fact occur at least temporarily. We are not here concerned with the workers’ compensation benefits justly paid to her during the period of her convalescence, or with permanent disability benefits paid to her, and assessed by the deputy, for her residual physical disability at the time of maximum medical improvement in March 1979. When she reported back to work in November 1977, some time before the undisputed maximum medical improvement date, Dr. Casade-mont, claimant’s psychiatric physician, described her address to life and work in this way:

I think that ... in spite of all the problems she was still motivated and had returned to work, to Jack Steinberg, and I said, yes, this is exactly what happened. That in spite of all these problems she continued to try to lead an active or productive type of life.
She tried to go back to work. I mean, you see, the same pattern. Again, maybe she was not feeling well, but she did try to go back one more time.

What claimant found, when she returned to work, was that her job was no longer available. In claimant’s words, her employer told her “I don’t want you here anymore." This event, Dr. Casademont concluded, was the critical factor (in what he called the “accident”), which accounted for that part of her permanent partial psychiatric disability not attributed to her predisposing conditions. In March 1980 she found both the opportunity and the will to return to gainful employment elsewhere.

Given the complexity of this human experience, and the variety of medical testimony in the record, it is no doubt possible to remodel the deputy’s description of causal events in various ways. One might say that claimant’s distress over the firing incident extended and aggravated or prevented her recovery from psychological conditions related to the compensable accident. One might say that her reactions to loss of employment and to her injury were concurrent causes of her rated permanent psychiatric disability.

The difficulty with those divergent interpretations of the record, and with others that might be imagined by some combination of three judges of a twelve-judge court, is that the deputy viewed the facts somewhat differently. Weighing all the complex and necessarily abstract medical opinion in the light of his complete familiarity with the claimant and her case, gained over the course of several hearings, the deputy found as a fact that

the psychiatric problems of the claimant do not arise out of the industrial accident, but were related only to the loss of her employment.

If the deputy’s finding is sustained, claimant’s depression is not compensable, since that finding necessarily rests on a determination that her industrial injury was not a direct or indirect cause of her loss of employment (conceded by counsel on this record) or the ensuing permanent psychiatric impairment. Chapter 440 encourages but does not require an employer to keep open a job for a returning worker, and it does not monitor the employer’s reasons for giving the job to another or declaring it surplus. If the law did have that effect, claimant’s jobless condition in such circumstances as these would automatically be compensable regardless of other available work. An employer’s decision not to rehire does not necessarily become a compensable event, as a matter of law, because the former employee is wracked with disappointment.

So the deputy’s assessment of the evidence as a whole, including Dr. Casade-mont’s testimony, was a permissible one, whether or not we would have made such an assessment in his position. This is the kind of winnowing decision, applying law to facts, that circuit court judges and juries make every day; it is the kind of decision, from those sources, that appellate courts routinely and steadfastly refuse to disturb. In the same way, then, the findings and conclusions of deputy commissioners command our respect, and when we withhold that due deference we only unsettle the compensation system and invite retrials of compensation claims in this court. We therefore reaffirm that the deputy’s findings will be sustained if that is permitted by any view of the evidence and its permissible inferences; that, as we said in Poinciana Village Construction Corp. v. Gallarano, 421 So.2d 621 (Fla. 1st DCA 1982), the deputy is “the trier of facts and the judge of their significance both first and foremost,” and the deputy’s decisions falling “within that range of reasonable analysis” will be sustained.

The deputy’s order is therefore AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, ERVIN, SHIVERS, WENT-WORTH, JOANOS, THOMPSON and WIG-GINTON, JJ., concur.

SHAW, J., dissents with opinion in which BOOTH and LARRY G. SMITH, JJ., concur.

MILLS, J., dissents with opinion in which BOOTH, J., concurs.

BOOTH, J., dissents with opinion.

SHAW, Judge,

dissenting.

In this workers’ compensation case, the claimant appeals the deputy’s findings that claimant’s psychiatric problems were not caused by her compensable accident and that she did not suffer a loss of wage earning capacity greater than 10% physical impairment. I would reverse and remand with directions.

On 16 May 1977, claimant suffered injuries to her left ankle, right leg, right wrist and hand, right rib cage, and dorsal spine when she slipped and fell on the employer’s premises. Prior to her fall she had been continuously able to hold a job, had worked approximately five years for the employer, and had a history of preexisting psychiatric problems which were symptomatic but not disabling. Subsequent to her industrial injury, her attending physician, Dr. Barrios, reported that non-organic factors were playing a role in her symptoms and recommended psychiatric evaluation. During hospitalization in September of 1977, a psychiatric consultant, Dr. Escoto, recommended psychotherapy for acute depression. This recommendation was reiterated in October, but claimant continued to decline psychotherapy. On 3 November 1977, Dr. Barrios recommended that she return to work. However, when she attempted to return to her former employment on 7 November 1977, she was informed that her services were no longer desired. In February of 1978 claimant consulted a psychiatrist, Dr. Casademont, for treatment of her emotional problems. This treatment was authorized by the carrier and continued through 19 March 1980, at which time Dr. Casademont opined that claimant had reached maximum medical improvement with a psychiatric disability of the body as a whole in the range of 30-35%, only 25-30% of which the doctor attributed to the accident.

In his order finding that claimant’s psychiatric problems did not arise out of her industrial accident, the deputy relied upon the testimony of Dr. Casademont, and concluded that claimant’s psychiatric problems were triggered by her former employer’s refusal to rehire her and did not arise out of the industrial accident. The employer/carrier urge on appeal that Dr. Casademont’s characterization of the firing establishes it as having independently caused claimant’s psychiatric problems, and furnishes competent substantial evidence supportive of the deputy’s finding.

The deputy’s findings are presumed to be correct, and our appellate function is to determine whether the findings are supported by competent substantial evidence. Howard v. Green’s Tractor Co., 290 So.2d 46 (Fla.1973). In my view, the finding that no psychiatric impairment is attributable to the accident is not so supported. Doctors Barrios and Escoto opined prior to the firing that the claimant suffered from psychiatric problems following the industrial accident. Their opinions are consistent with that of Dr. Casademont who testified in response to a question from the deputy that the claimant’s psychiatric care and therapy “was related to the accident with manifestations that began to appear after the accident, and after the treatment that she received for the accident.” I find it difficult to reconcile this language with the deputy’s conclusion that no part of the claimant’s psychiatric problems arose out of the industrial accident, and that her psychiatric condition stems solely from her loss of employment. Although the doctor’s language is subject to varying interpretations, I believe a fair reading of his testimony is that the firing did not cause the claimant’s existing psychiatric problems, 25-30% of which the doctor recognized as stemming from the industrial accident, but merely furnished an occasion for their manifestation. An inability to return to previous employment is a foreseeable consequence of the occurrence of an injury which interrupts the claimant’s employment. Where, as in this instance, the employer refuses to rehire the employee, I regard the failure to rehire not as a compensable event in itself, but simply as a fortuitous circumstance that may unfortunately befall a claimant, and thus impede the claimant’s attempt to return to a productive work status. Where the accident, the resulting disability, and the refusal to reemploy are all interrelated, I do not view the failure to reemploy the claimant as a subsequent intervening cause that would bring into play the doctrine of reverse merger adopted by this Court in Pan American World Airways, Inc. v. Franchina, 396 So.2d 245 (Fla. 1st DCA 1981). Dr. Casade-mont treated the claimant for depression, anxiety, phobias, and hysteria that sometimes lasted for several days. He testified that the firing was part of the dynamics of the claimant’s depression. I find the appellant’s psychiatric impairment compensa-ble and accordingly would reverse and remand with directions to award the claimant additional permanent disability for psychiatric impairment.

Claimant’s second point on appeal urges that the deputy erred in finding that she did not suffer a loss of earning capacity greater than the 10% physical impairment. The applicable law, section 440.15(3)(u), Florida Statutes (1977), provides that permanent partial disability may be measured as either physical impairment or diminution of wage earning capacity, whichever is greater. The deputy’s award of permanent partial disability for a 10% disability of the body as a whole is supported by the testimony of Dr. Mims, an orthopedic surgeon, who also placed restrictions on claimant’s physical activities. I see no abuse of discretion on the deputy’s part in determining that the 10% physical impairment is greater than the loss of earning capacity created by the restrictions. However, the deputy’s determination on this point is affected by our disposition of point one above. Accordingly, I would remand for reconsideration, but in passing caution against placing undue emphasis on the fact that the claimant is earning more money at her current employment than she was earning at the time of her industrial injury. See Guzman v. Surge Electric, Inc., 381 So.2d 287 (Fla. 1st DCA 1980). Moreover, the deputy should consider whether the claimant’s current employment falls within the “odd-lot” doctrine recently enunciated in Lister v. Walker, 409 So.2d 1153 (Fla. 1st DCA 1982).

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

MILLS, Judge,

dissenting:

It was suggested by one of my colleagues that this dissent was inappropriate. I do not agree. It follows.

Although it is my opinion that the deputy’s order is supported by competent substantial evidence, I am compelled to dissent for the following reasons.

This case was decided initially by a panel of three Judges which ruled on the issues raised by Gomez and then gratuitously receded from this Court’s prior decisions in Pan American World Airways, Inc. v. Franchina, 396 So.2d 245 (Fla. 1st DCA 1981), and Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980), which adopted the “no reverse merger rule.” The writer of the opinion requested en banc consideration because of this conflict.

After initial en bane consideration, the majority of the Court favored adherence to the Pan American and Glades cases but favored reversal of the deputy’s order. After the initial en banc opinion was written, a doubtful majority supported it.

Because of the questionable majority, the case was considered en banc again. On this occasion, the majority of the Court agreed to affirm the deputy’s order but refused to recede from the Pan American and Glades cases. The majority agreed that the en banc opinion should affirm the deputy’s order but should not mention the en banc issue because it was not raised as an issue before the deputy or this Court.

This appeal became an en banc proceeding because the panel to which it was assigned desired to recede from this Court’s Pan American and Glades case, supra. A majority of the Judges agreed, however, that the reverse merger issue, which brought about the en banc proceeding, was not before the Court because it was not an issue before the deputy or this Court.

In my judgment, when this conclusion was reached, this matter was no longer subject to en banc consideration. The original opinion of the panel should stand because upon removal of the en banc issue from the opinion, there is no conflict. The Judges on the initial panel agreed that they should not have receded from the Pan American and Glades cases because the “no reverse merger doctrine” was not an issue in this case.

A cursory reading of the majority opinion will reflect that it does not state what the “apparent conflict” was that brought about an en banc consideration, nor does it cite prior cases of this Court which raise conflict, nor does it state that it resolves a conflict. Why doesn’t it? Because there was and is no conflict.

For these reasons, I- would reinstate the panel’s original opinion, absent the suggestion that the panel receded from the Pan American and Glades cases, supra.

BOOTH, J., concurs.

BOOTH, Judge,

dissenting:

I concur in the dissenting opinion of Judge Mills, that the necessary predicate for en banc consideration is lacking. (See, Schreiber v. Chase Federal Savings & Loan Association, 422 So.2d 911, 1982, opinions of Chief Judge Hubbart and Judge Nesbitt, stating majority view of our sister court on predicate for en banc consideration). On the merits of the controversy as considered en banc, I concur in the dissenting opinion of Judge Shaw.

      . The deputy found as follows:
      5. This claimant has had extensive psychiatric treatment and examinations. Her treatment by Dr. Carlos Casademonte was authorized by and is the responsibility of the employer. Dr. Casademonte testified in detail on this case. He implicated her pre-existing hepatitis and expressed the opinion that this claimant has an extremely dependent personality, which pre-existed her accident. Dr. Casademonte testified that the triggering mechanism for the depressive anxiety problems the claimant had was her attempt to return to work shortly after her injury and being told by her employer that there was no job for her because of her back condition. It appears this was a shock to her ego and triggered her psychiatric problems, and not the industrial accident. Considering all the pre-existing conditions and the triggering mechanism testified to by Dr. Casademonte, I find that the psychiatric problems of the claimant do not arise out of the industrial accident, but were related only to the loss of her employment.
      Record on Appeal, Vol. III, at 535-536.

      . Q. All of these things are part of the dynamics of the depression that this patient presently has?
      A. Right.
      Q. Are there any other factors that should be considered other than what we have discussed?
      Of course, we have the 1978 auto accident which I gather was rather minor.
      A. It was minor. It was nothing too much.
      Other things, I don’t know if we have fully discussed them or talked about it, has been the fact that she lost a job that she has had for several years in which she was feeling wanted. At least she felt that she was functioning and doing things all right.
      It was very close to where she lives, so there was no problem with transportation. The hours were convenient for her, and she had self-esteem that comes not only with the fact she was earning some money on her own, but also the fact she was doing something useful, and was gainfully employed, and she lost that.
      Q. Is there any element—
      THE DEPUTY COMMISSIONER: Off the record.
      (Thereupon, a discussion was held off the record.)
      THE DEPUTY COMMISSIONER: Back on the record.
      Q. (By Mr. Ortmayer) Doctor, is there any element of secondary pain in this patient, malingering or anything?
      A. I do not feel she’s malingering.
      Record on Appeal, Vol. I, at 137-138.


text:
    QUALITY PETROLEUM CORPORATION and Federated Mutual Insurance Company, Appellants, v. Elyse Dula MIHM, Appellee.
    No. ZZ-270.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Bernard J. Zimmerman and W. Michael Miller, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Susan R. Whaley, of Macfarlane, Ferguson, Allison & Kelly, Tampa, and W. James Kelly, Lakeland, for appellee.
   SHIVERS, Judge.

Claimant sustained a compensable injury on November 4, 1979, when she fell from a ladder injuring her right leg. She was conservatively treated for approximately one week by her family physician. Her leg continued to be swollen and painful, and she was subsequently diagnosed as having a large hematoma with partial infection. Claimant was hospitalized and surgical treatment rendered.

A claim for benefits was filed on February 18, 1980, seeking temporary total disability benefits for the period of time prior to March 25, 1980, and wage loss benefits subsequent to that date. Based on the depositional testimony and medical reports of Dr. Melton and other treating physicians, the deputy commissioner found claimant reached maximum medical improvement on March 25,1980, and sustained a ten percent (10%) permanent partial impairment of the right lower extremity. The deputy found that following claimant’s maximum medical improvement on March 25, 1980, claimant made a good faith work search. Based on other testimony presented, including that of the claimant, the deputy found claimant incurred a total loss of wages for the period of March 25, 1980, until June 7, 1980. The deputy computed claimant’s compensation rate to be $184.15 per week. The employer and carrier contend, and claimant concedes, that the deputy erred in the computation of that compensation rate. The deputy further ordered the employer and carrier to pay temporary total disability benefits for the period of January 14, 1980, through March 25, 1980. The costs of the proceedings were assessed against the employer and carrier.

The evidence presented to the deputy commissioner on the issue of permanent impairment came from Dr. Melton’s medical reports and his deposition. It was established that claimant was evaluated by Dr. Melton, an orthopedic surgeon, in March of 1980. He opined that claimant had reached maximum medical improvement from an orthopedic standpoint on March 25, 1980, and had sustained a ten percent (10%) permanent partial disability of the right lower extremity. Dr. Melton testified that his rating was based upon a reasonable medical probability but that he did not use the American Medical Association Guides to Permanent Impairment in arriving at this rating. He explained that the AMA Guides did not cover the type of functional disability which was involved in this case such as soft tissue scarring, impairment of local circulation, probability of recurring infection, recurrent swelling and pain. Dr. Melton testified that his rating was not inconsistent with the AMA Guides but rather that the AMA Guides did not address this type of injury. This testimony was not contradicted by any other evidence presented to the deputy commissioner.

On appeal, employer/carrier contend that the deputy erred in awarding wage loss benefits since the claimant’s permanent partial disability was not determined in conformity with section 440.15(3), Fla.Stat., and that the finding was otherwise unsupported by competent, substantial evidence. Additionally, appellant contends the deputy erred in awarding temporary total disability benefits in that there was no medical evidence supporting an inability to work and claimant failed to make any work search during this period of time. Finally, appellant contends that the deputy commissioner erred in requiring the employer to pay the costs of the proceedings.

Section 440.15(3), Fla.Stat. (1979), establishes the American Medical Association’s Guides to the Evaluation of Permanent Impairment as the temporary schedule to be used for determining permanent impairment. It appears from that statute that the Legislature did not intend the AMA Guides to remain the sole standard for determining permanent impairment, but rather envisioned the division establishing additional schedules, based on generally accepted medical standards, for determining the existence and degree of permanent impairment. To date, the division has failed to establish any permanent schedule and the American Medical Association’s Guides to the Evaluation of Permanent Impairment continues to be the only schedule authorized by the statute.

Appellant contends that since claimant’s injury did not result in permanent impairment as measured by that guide, there is no statutorily permissible method to evaluate claimant’s permanent impairment. Appellant concludes that claimant cannot legally be considered to have any permanent impairment. It is suggested by appellee that it would be contrary to the purpose of the Workers’ Compensation Act to deny claimants any compensation when they have permanent impairment based upon generally accepted medical standards just because their particular disability is not included within the American Medical Association’s Guides. We agree. Where the uncontradicted sworn testimony establishes that an injured employee has suffered permanent physical impairment, but that impairment is not addressed by the American Medical Association’s Guides, it is not error for the deputy to rely on medical testimony of permanent impairment based upon other generally accepted medical standards. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982).

Although we affirm the deputy’s finding of permanent impairment, we are compelled to reverse in part the award of wage loss benefits. Section 440.15(3)(b), Fla.Stat. (1979), states that wage loss benefits shall be based upon actual wage loss and shall be computed on the difference between claimant’s average monthly wage before the compensable accident and the salary claimant is able to earn after reaching maximum medical improvement. The burden is on the employee to establish that any wage loss claimed is the result of the compensable injury. Section 440.15(3)(b)(2), Fla.Stat. (1979).

Claimant is required to show a change in employment status due to the injury and an adequate and good faith attempt to secure employment commensurate with claimant’s abilities. Claimant was awarded wage loss benefits from March 25, 1980, until June 7, 1980, but claimant admitted that she did not begin to look for work until May of 1980.

Although exact coincidence is not required, there should be a reasonable temporal relation between a good faith work search and the wage loss benefits claimed. The award of total loss of wages for the period March 25, 1980, through April 30, 1980, is, thus, not supported by competent, substantial evidence. However, there is competent, substantial evidence that beginning in May, 1980, claimant made a good faith work search and that she is entitled to an award of total loss of wages from May 1, 1980, through June 7, 1980, as a result of her compensable injury. Accordingly, this portion of the order is affirmed in part and reversed in part.

The deputy’s finding that claimant was entitled to receive temporary total disability benefits from January 14, 1980, through March 25,1980, is not supported by competent, substantial evidence and must also be reversed. Claimant’s family physician, Dr. Albo, released claimant to return to normal work as of January 14, 1980. Dr. Melton described claimant’s condition as scar tissue which tends to swell and remain tender and symptomatic to some extent, but he did not disagree with Dr. Albo’s opinion that claimant was able to return to work in January of 1980. Claimant admitted that she did not begin looking for work until May of 1980, because prior to that time she could not walk on her leg as it was too painful. A claimant’s testimony as to being unable to work due to pain is not sufficient to establish temporary total disability in the absence of medical evidence of inability to work. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981).

We affirm the taxing of costs against the employer and carrier. Hatch v. City Cab Co., 382 So.2d 895 (Fla. 1st DCA 1980).

Accordingly, this cause is AFFIRMED in part, REVERSED in part and REMANDED to the deputy commissioner with instructions to enter an order consistent with this opinion.

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


text:
    Alfred JOHN, Appellant, v. GDG SERVICES, INC. and Zurich Insurance Company, Appellees.
    No. AC-212.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      John M. Abramson, Miami, and John D. Rawls, Jacksonville, for appellant.
    Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees.
   SHIVERS, Judge.

John appeals a deputy commissioner’s order which granted a claim for wage-loss benefits but denied benefits for permanent physical impairment for the loss of sight in one eye under Section 440.15(3)(a), Fla.Stat. (Supp.1980). Appellant raises nineteen points for our consideration challenging both the factual and constitutional basis for the order below. Appellee raises a single issue on cross-appeal. We reverse the order denying recovery for permanent physical impairment but affirm all other points.

On August 13, 1980, John was injured in an industrial accident within the course and scope of his employment with GDG Services, Inc., where he was employed as a lawn worker and sweeper. As a result of the accident, appellant lost sight in one eye. GDG Services accepted the accident as com-pensable and paid total temporary disability benefits from August 14,1980, to October 8, 1980. The deputy determined John reached maximum medical improvement on October 9, 1980, but was unable to work until January 15, 1981. Accordingly, the deputy awarded wage-loss benefits for the period between October 9, 1980, and January 15, 1981. The deputy, however, found no permanent impairment benefits were due under the provisions of Section 440.15(3)(a).

Section 440.15(3)(a)1. provides in part:

(a) Impairment benefits.—
1. In case of permanent impairment due to amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1), there shall be paid to the injured worker the following:
a. Fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 50 percent

The challenged order demonstrates the deputy interpreted the statute to allow benefits only where a compensable accident resulted in 80 percent or more loss of vision considering both eyes. In Mahoney v. Sears, Roebuck & Co., 419 So.2d 754.

(Fla. 1st DCA 1982), we construed section 440.15(3)(a)1., Fla.Stat. (Supp.1980) to permit recovery for the loss of 80 percent or more of the vision in one eye. This interpretation is consistent with the rules requiring liberal construction of the workers’ compensation provisions.

Appellant also asserts numerous constitutional challenges asserting, among other points, that the new wage-loss system, section 440.15(3)(b), Fla.Stat. (Supp.1980), unconstitutionally limits access to court by not providing an adequate alternative to the previously existing remedies or to common-law remedies. More specifically, appellant contends the new wage-loss statute diverges too greatly from the preexisting remedy, the right to recover for loss of wage-earning capacity. The courts, however, have been reticent to hold a statute unconstitutional for such reasons. In Kluger v. White, 281 So.2d 1 (Fla.1973) the Supreme Court considered a challenge to the Florida no-fault insurance law. The court stated:

We hold, therefore, that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Id., at 4.

Kluger, however, has been narrowly construed. In Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981), this court considered whether section 768.28, Fla.Stat. (1977), the sovereign immunity for tort claims against the state statute, unconstitutionally altered the common-law remedy. The court stated:

Guided by case law subsequent to Kluger, we narrowly construe the instances in which constitutional violations will arise. The Constitution does not require a substitute remedy unless legislative action has abolished or totally eliminated a previously recognized cause of action.
As discussed in Kluger and borne out in later decisions, no substitute remedy need be supplied by legislation which reduces but does not destroy a cause of action .... (Emphasis supplied.)

Id., at 398.

Workers’ compensation provisions have long been justified as a necessary exchange — the employee trades his common-law remedy for a sure expeditious method of settling claims. Although we note the benefits under the new wage-loss provisions may result in reduced benefits, the right to recover for industrial injuries has not been so reduced as to be effectively eliminated. Accordingly, we are compelled to hold section 440.15(3)(b) constitutional.

The order below is reversed to the extent it denied compensation for the loss of vision in John’s eye. The cause is remanded with instructions to enter an order consistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge. BOOTH, Judge,

text:
    W.D. CHILDERS, President of the Florida Senate and Joe Brown, Secretary of the Florida Senate, real parties in interest; and George Firestone, Secretary of State of Florida, nominal party, Appellants, v. AMERICAN AUTOMOBILE ASSOCIATION, INC., et al., Appellees.
    No. AG-355.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      D. Stephen Kahn, Tallahassee, for appellants.
    Kenneth E. Apgar and Louis de la Parte, Jr., of de la Parte & Butler, P.A., Tampa, for appellees.
   WIGGINTON, Judge.

This cause is before us on appeal from the amended final judgment of the circuit court declaring Senate Bill 1249 (Chapter 79-276, Laws of Florida) to have been invalidly enacted and therefore to be a nullity. We reverse.

The facts as gleaned from the record reveal a legislative history of Senate Bill 1249 frought with frenzied debate and stunning tactical machinations. The bill, relating to interstate and intrastate road system vehicle weights (amending § 316.535(4), Fla.Stat.) was first introduced in the Senate on May 17,1979, during the regular session. The American Automobile Association (AAA), appellees herein, along with other interest groups, vigorously opposed the bill; it soon became the center of intense political debate. Lobbying had reached a fevered pitch. The bill passed the Senate but failed to do so in the House.

During the final hours of the session, however, both houses had passed Senate Concurrent Resolution 1318 by three-fifths vote, as required by Article III, Section 3(d), Florida Constitution, extending the session for six days. The resolution further stated:

The regular session so extended shall only consider the general appropriations bill, the house and senate conference committee report, thereon with related implementing measures; house bill 1707 relating to pari mutuel wagering; senate bill 1317 relating to drug abuse and the redefinition of cannabis; tax relief; certification of judges; establishment of the Fifth District Court of Appeals (sic); regulatory practice acts; intra-district legislative expenses; legislative salaries; and in addition, such other matters or new business as may be taken up with the consent of two-thirds vote of the membership of each house. (Emphasis added)

Debate on SB 1249 raged in the extended session. Pursuant to the procedure mandated by the concurrent resolution, the House of Representatives garnered a two-thirds vote of its membership to further consider the bill. On the last day of the extended session, the bill passed the House and barreled to the Senate. A quarter-hour was left before the Senate faced sine die adjournment.

With what can at best be viewed as questionable political manipulation, the Senate avoided certain hurdles by abbreviating its consideration of the bill and omitting the two-thirds vote. The bill was rammed through with blistering speed and was passed, 21 to 18, a stellar victory for its proponents. The whirlwind extended session was adjourned.

Left in the dust, AAA girded itself and launched a second assault, this time choosing a collateral attack. The Senate Journal for the 1979 session incorrectly reflected that a motion had been made and a two-thirds vote of the Senate had been taken prior to final consideration of SB 1249. In order to have the Journal corrected, AAA filed a petition for alternative writ of mandamus in the Circuit Court for Leon County, directing the secretary and the president of the senate to correct the oversight by expunging the entry, or to show cause why a peremptory writ of mandamus should not issue. On November 16, 1979, the circuit court issued the writ.

Inspired by this minor coup, AAA filed a petition for extraordinary writ in the Supreme Court of Florida seeking, in effect, a declaratory judgment on the validity of SB 1249 in light of the corrected journal entry. The case was transferred on the Senate’s motion to the circuit court, which found that the two-thirds consent requirement contained in the concurrent resolution for “other matters” had not been met by the Senate and therefore Chapter 79-276, Laws of Florida, was a nullity. The circuit court directed the Secretary of State to make an appropriate change in the “statute law” of the state, and AAA won the battle. Now, however, we hold that it must unfortunately lose the proverbial war.

Several points have been raised on appeal, but the crux of the issue presented for our review is whether, by violating the provisions of the concurrent resolution, the Senate violated the Florida Constitution, thereby necessitating invalidation of the bill subsequently passed. The circuit court answered that question in the affirmative by reasoning that the provision in Article III, Section 3(d), Florida Constitution, allowing for the extension of the legislative session by a three-fifths vote, necessarily implies “that those whose vote for the extension are necessary may impose whatever conditions they may deem wise to restrict the time of the extension and the matters to be considered ... (emphasis added).” We decline to hold the percentage vote, mandated by the constitution, works to enlarge the conditions of that vote to constitutional proportions.

It is a cardinal rule that, in passing upon the constitutionality of statutes, nothing but a clear violation of the constitution will justify the courts in overruling the legislative will. It is also universally held that a legislative act cannot be declared invalid for failure of a house to comply with its own rules of procedure.

Article III, Section 3(d), Florida Constitution, provides in pertinent part:

A regular session of the legislature shall not exceed sixty consecutive days ..., unless extended beyond such limit by a three-fifths vote of each house. During such an extension no new business may be taken up in either house without the consent of two-thirds of its membership, (emphasis added)

Thus, under the constitution, only the consideration of “new business” during an extended session requires a two-thirds consent vote. That is the organic law pertinent here. Senate Bill 1249 was not “new business” requiring a two-thirds vote under the constitution, therefore that law was not violated by the Senate. Rather, the Senate violated one of its own rules, i.e. the condition contained in the concurrent resolution requiring a two-thirds consent vote before consideration of “such other matters.”

Senate Concurrent Resolution 1318 passed by the requisite three-fifths vote in order to extend the regular legislative session. The mandate of Article III, Section 3(d) was satisfied. The conditions contained in the resolution, however, did not by that vote take on constitutional dimensions. That the conditions were violated speaks only to the ethics of the Florida Senate, not to the constitutionality of the Senate bill.

Due to our decision today, we need not reach appellants’ final point on appeal. The amended final judgment of the circuit court declaring Senate Bill 1249 a nullity is hereby REVERSED.

WENTWORTH, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent.

The trial court correctly ruled the purported enactment of Senate Bill 1249 was invalid. Appellants’ arguments to the contrary are impercipient.

The Florida Constitution requires a three-fifths vote of the membership of each house in order to extend a legislative session and dictates that, during such an extension, no new business shall be taken up in either house without the consent of two-thirds of the membership.

Senate Concurrent Resolution 1318, passed by the requisite three-fifths vote of both houses, provides:

A CONCURRENT RESOLUTION extending the regular 1979 legislative session under the authority of Article III, Section 3, of the State Constitution; establishing limitations in scope of legislation to be considered; providing for exceptions.
The 1979 regular session of the Florida Legislature is extended until noon, Wednesday, June 6, 1979, under the authority of Article III, Section 3 of the State Constitution.
The regular session so extended shall only consider the general appropriations bill, the House and Senate Conference Committee Report thereon with related implementing measures; House Bill 1707 relating to Pari-Mutuel Wagering; Senate Bill 1317 relating to drug abuse and the redefinition of cannabis; tax relief; certification of judges; establishment of the Fifth District Court of Appeals; regulatory practice acts; intradistrict legislative expenses; legislative salaries; and in addition, such other matters or new business as may be taken up with the consent of a two-thirds vote of the membership of each house, (emphasis added)

Appellants would have us consider the three-fifths extension vote independent of the limitations imposed by SCR 1318, supra. They urge that limitations on legislation to be considered, limitations not met by Senate Bill 1249, were not binding so as to render Senate Bill 1249 invalid.

I would reject appellants’ contentions in this regard, as the trial court wisely did.

Limitations on legislation to be considered in the extended session were part and parcel of the extension vote itself and may not be severed. This court cannot speculate that the necessary three-fifths vote would have been obtained without the appended limitations. The integrity of the vote itself is the issue, an issue of constitutional import.

The legislative body may not accept the extension vote by its members without honoring the limitations accompanying that vote and, on commencement of the extended session, had no power to alter or abandon limitations imposed during the regular session.

The judgment below should be affirmed.

      . “All Acts of the Legislature which are duly enacted according to constitutional prerequisites ... are statutes ... [a]nd should be given effect as such ... unless they are unconstitutional.” State ex rel. Landis v. Dickenson, 103 Fla. 907, 138 So. 376, 378 (1931).

      . See 1 A. Sutherland, Statutory Construction 4th ed., §§ 7.01 and 7.04. Similarly, the Legislature by statute or joint resolution cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation, id., at 264.

      . The record does not support appellants’ argument that SB 1249 was a “regulatory practice act” within the call of SCR 1318. The legislative intent behind that phrase was shown to have pertained to the statutory regulation and licensing of the practice of various professions and occupations within the Department of Professional Regulation. The Final Committee Report of the 1979 House Committee on Regulatory Reform, of which the circuit court took judicial notice, conclusively so demonstrates. Therefore, SB 1249 falls within the ambit of “such other matters” in the concurrent resolution.

      . Senate Bill 1249 was subsequently readopted by the passage of Senate Bill 234, Chapter 81-2, Laws of Florida. Because the defect in SB 1249 was not constitutional but merely procedural, it was cured by virtue of the reviser’s bill. Massachusetts Bonding & Insurance Company v. Bryant, 175 So.2d 88 (Fla. 1st DCA 1965), aff'd, 189 So.2d 614 (Fla.1966).

      . Art. III, § 3(d), Fla. Const.:
      A regular session of the legislature shall not exceed sixty consecutive days, and a special session shall not exceed twenty consecutive days, unless extended beyond such limit by a three-fifths vote of each house. During such an extension no new business may be taken up in either house without the consent of two-thirds of its membership.

      . Order of the trial court:
      The Constitution places the power to extend the session by a three-fifths vote of each house. Section 3(d), Article III. Such extension is accomplished in this case through the passage by requisite vote in each house of SCR 1318. The policy of the Constitution is clearly stated that legislative sessions be of limited duration, with sixty consecutive days being the duration of the regular session and twenty consecutive days for a special session. The power of extension does not prescribe a maximum time limit. However, logic, reason, and a policy of an extension by a three-fifths vote would necessarily impiy that those whose vote for the extension are necessary may impose whatever conditions they may deem wise to restrict the time of the extension and the matters to be considered. Therefore, the restrictions of subject matter to be taken up, as set forth in SCR 1318, control the scope of the measures to be considered. Measures taken up and acted upon outside of the restrictions of the concurrent resolution are not validly enacted, (emphasis added)

      . See, Advisory Opinion to Governor, 95 So.2d 603, 606 (Fla.1957):
      [S]uch action as the Legislature takes making provision for an extension of its regular session must be taken during the regular session itself.


author: WENTWORTH, Judge.

text:
    Mary J. DROZAK, Appellant, v. George W. DROZAK, Appellee.
    No. AI-397.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Harry B. Mahon of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Whitney Hugh Cotney, Jacksonville, for appellee.
   WENTWORTH, Judge.

The wife appeals from a final judgment of dissolution of marriage denying her claims for periodic and/or lump sum alimony. We reverse and remand.

The parties were married for approximately fifteen years and had three minor children at the time of the final judgment. The wife had a history of poor health and at the time of the final hearing she was unemployed and recovering from a series of surgical operations. However, she had worked as a part time convenience store clerk during most of the marriage and expected to return to work soon after the final hearing. Her expected take-home pay was $353.16 per month. In spite of her history of employment, the wife had accumulated no personal assets during the marriage. By contrast, the husband had a gross weekly pay of $562.40 and had accumulated substantial personal assets in the nature of tools and guns. The marital home was acquired by the husband prior to the marriage and the title was solely in his name, although his financial affidavit lists his ownership as a one-half interest.

The final judgment awarded the wife custody of the children, child support, and use of the marital home until she remarries or the youngest child becomes 18 years of age or independent. The wife also received an encumbered van and half interest in the furnishings and fixtures in the marital home. Her claim for an interest in the house was specifically denied without explanation, and her claim for permanent alimony was denied by implication, the final order containing no reference to this claim.

Upon the facts presented, the final judgment does not in our opinion respect the requisite factors of the need for and ability to pay permanent alimony, either periodic or lump sum. The wife, being unemployed at the time of the hearing and having an expectation of only approximately $80 per week, clearly demonstrated a need for support. The husband, by virtue of established earning capacity, and the fact that his financial position stated by affidavit rests on an apparent misrepresentation of his interest in the house, clearly has the ability to pay permanent periodic alimony and/or lump sum alimony in the form of one half of his interest in the home. The record being devoid of evidence indicating a possible explanation for the disparity in treatment of the parties, we find the final judgment to be an abuse of discretion. We therefore reverse and remand with instructions that the trial court reconsider the wife’s alimony claims.

Reversed and remanded for further proceedings consistent with this opinion.

McCORD and BOOTH, JJ., concur.

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

      . Cf., Beville v. Beville, 415 So.2d 151 (Fla. 4th DCA 1982).


text:
    James THOMAS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-298.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      James Thomas, pro se for appellant.
    No appearance for appellee.
   THOMPSON, Judge.

Appellant seeks review of the determination of his presumptive parole release date (PPRD). Appellant argues, inter alia, that the Florida Parole and Probation Commission (Commission) erred in using “armed robbery” instead of “robbery” as one of his offenses of conviction and erred in aggregating two convictions to arrive at his PPRD. We reverse in part and affirm in part.

In establishing appellant’s PPRD, the Commission used “armed robbery” as one of appellant’s two offense characteristics and aggravated appellant for a concurrent robbery conviction. Appellant’s sentences reflect that he was convicted of two counts of “robbery” as opposed to two counts of “armed robbery.” Since the offense characteristic must reflect the actual offense of conviction, it was error for the Commission to use “armed robbery” instead of “robbery” as appellant’s offense characteristic. See Lowe v. Florida Parole and Probation Commission, 411 So.2d 352 (Fla. 1st DCA 1982); Fla.Admin.Code Rule 23-19.01.

The Commission separately scored appellant for breaking and entering and for armed robbery, and then aggregated the two scores. Appellant argues that this was error because his sentence for breaking and entering had allegedly expired on July 14, 1981, prior to his initial July 31,1981 parole interview. Fla.Admin.Code Rule 23-19.-02(2)(g), which was in effect at the time of appellant’s initial interview, expressly provided for aggregation in the instant situation. The current aggregation rule, Fla.Admin.Code Rule 23-21.11(3), also allows for the aggregation herein. Accordingly, we find no error in the instant aggregation, once the offense characteristic is reduced from “armed robbery” to “robbery” as directed above.

Appellant’s remaining arguments are without merit.

The order appealed from is reversed in part, affirmed in part, and remanded to the Commission for the establishment of an appropriate PPRD.

BOOTH and WENTWORTH, JJ., concur.


author: McCORD, Judge. SHIVERS, Judge,

text:
    Robert MAY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-470.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      Robert May, in pro. per., for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   McCORD, Judge.

This appeal is from an order of the Florida Parole and Probation Commission (the Commission). We affirm.

Appellant May is serving sentences in the state prison for several felony convictions. On December 3, 1980, his presumptive parole release date (PPRD) was initially set for July 31, 1984, under the then-existing (1979) matrix guidelines established by rule of the Commission for determining such tentative release date. On May 30, 1981, while still in prison, appellant was convicted of the crime of introduction of contraband into a correctional institution and was sentenced to one year in prison to run consecutively with his previous sentences. Based on this conviction, the Commission reinter-viewed appellant, aggregated his present and previous convictions and recalculated his PPRD based on new matrix time ranges adopted by the Commission on September 10, 1981 (Rule 23-21.09, Florida Administrative Code).

Appellant contends first that the Commission’s recalculation of his initial PPRD based on the 1981 guidelines violates an order issued by the Circuit Court of the Second Judicial Circuit directing the Commission to establish a new PPRD in light of appellant’s latest conviction based on the 1979 matrix guidelines. This contention is without merit. The order referred to by appellant was in response to a petition for writ of mandamus which had been filed in the circuit court by appellant to compel the Commission to determine his PPRD. Before the court ruled, the Commission established appellant’s PPRD, and thereafter, the court, apparently unaware of the Commission’s action, granted the writ and ordered the Commission to establish his PPRD within 30 days of the order. The order is devoid of any suggestion that the establishment of appellant’s PPRD was necessitated by his latest conviction or that his PPRD was to be based on the 1979 guidelines. The only logical inference to be drawn is that the order was issued because the Commission had failed to timely establish appellant’s PPRD and because the court was unaware at the time of issuance of its order that the Commission had previously set appellant’s PPRD. Thus, by the time the order issued, it was moot. Consequently, there is no basis for concluding that the Commission violated the court’s order by failing to conduct a hearing to establish appellant’s PPRD within 30 days of the order.

Appellant next contends that the Commission’s setting of his new PPRD, based on the 1981 matrix guidelines, violated state and federal constitutional proscriptions against ex post facto laws in that the new PPRD was set pursuant to the rule in effect at that time rather than the rule in effect when he committed the crimes. We have previously ruled adversely to this contention in several cases. See Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Hurst v. Florida Parole and Probation Commission, 418 So.2d 444 (Fla. 1st DCA 1982); and Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). As we stated in Overfield:

Without extended discussion of whether amendments to the matrix rule constitute procedural changes not subject to ex post facto considerations, or are substantive changes, we cannot agree that such amendments necessarily increase punishment and are, therefore, illegal. The matrix time range does not automatically determine time served, and the Commission in its discretion may aggravate or mitigate the matrix time, setting a release date above or below the matrix, so long as it states its reasons with particularity. [Citations ommitted.] This process is to be contrasted with that addressed in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), where statutory changes in gain-time credits automatically reduced, without discretionary decision-making, the time to be served.

In addition to the rationale stated in the opinions in the foregoing cases, we add that a presumptive parole release date is only presumptive. It is discretionary prologue to the Commission’s final exercise of its discretion in setting an inmate’s effective parole release date. Section 947.18, Florida Statutes, which was in effect at all times pertinent to this case, gives the Commission ultimate discretion to decide when to parole an inmate even though his presumptive parole release date may indicate an earlier date. See Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982). The establishment of a presumptive parole release date by the Commission is not analogous to an inmate’s accumulation of statutory gain time — the subject matter of the United States Supreme Court’s opinion in Weaver.

Pursuant to Article V, Section 3(b)(4), of the Constitution of Florida, we certify that the following question passed upon by us in this cause is one of great public importance:

When, after the Florida Parole and Probation Commission has set a prisoner’s presumptive parole release date, the prisoner commits another crime thereby requiring that a new presumptive parole release date be set, does the Commission violate state and federal proscriptions against ex post facto laws when, in fixing the new presumptive parole release date, it uses more stringent guidelines adopted by it after the latter crime was committed?

AFFIRMED.

WIGGINTON, J., concurs.

SHIVERS, J., dissents.

SHIVERS, Judge,

dissenting:

The majority opinion holds that the retroactive application of the 1981 matrix guidelines in this case is not violative of the ex post facto clause. I respectfully dissent.

In view of the decision by the United States Supreme Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), I am compelled to find that the Commission’s action in this case is violative of the ex post facto clause. In Weaver, a prisoner claimed that a Florida statute which altered the method of prisoner gain-time computation and which was enacted subsequent to the crime for which he was incarcerated, affected him detrimentally, and was, therefore, an ex post facto law. The United States Supreme Court agreed and set forth a twofold test for determining whether a law violated the constitutional prohibition against ex post facto laws: (1) does the law attach legal consequences to crimes committed before the law took effect, and (2) does the law affect the prisoners who committed those crimes in a disadvantageous fashion? If the answer to both questions is yes, then the law constitutes an ex post facto law and is void as applied to those prisoners.

Under the facts of this case, both prongs of the Weaver test are met. First, the 1981 matrix guidelines attach the legal consequences of the Commission’s computation of the PPRD to those who committed crimes before the effective date of the Rule. It is irrelevant that appellant has no vested right to parole or that parole is a matter of grace. A statute may be retrospective if it alters punitive conditions outside the sentence or changes “the quantum of punishment.” Id., at 31-33, 101 S.Ct. at 966. Second, these consequences have a disadvantageous effect in that the 1981 guidelines clearly increase the time ranges used in computing the PPRD. This is evidenced by the fact that after appellant was convicted of his latest crime and given a one year sentence his PPRD was enhanced by over 10 years as a result of the application of the new guidelines. Thus, under the test established in Weaver, the retroactive application of the 1981 guidelines to crimes committed prior to September 10, 1981, clearly constitutes a violation of the ex post facto clause.

The majority as well as the Commission rely on Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982), as support for their contention that ex post facto does not apply. However, the holding in that case has no application here. In Lopez, this court held that the alteration of new matrix guidelines which increased matrix times and which took effect after the prisoner committed his crime was not violative of the ex post facto clause. However, there the court was careful to note that at the time of Lopez’ crime, “the only expectation Lopez had regarding parole was that it would be at the discretion of the Commission.” Since parole was discretionary at the time of Lopez’ crime and the parole guidelines made parole a more objective determination, the court concluded that, under those facts, the adoption and amendment of objective guidelines was a procedural change which, if anything, was ameliorative. Thus, the deciding factor in Lopez was the fact that at the time of Lopez’ crime there were no objective parole guidelines in effect.

The facts of this case are unlike those in Lopez in two important respects. First, unlike Lopez, the parole guidelines here were in effect at the time of appellant’s crimes. And second, with the exception of appellant’s latest conviction, the Commission had already set his PPRD under the matrix guidelines as they existed before they were amended. Based on these distinctions, Lopez provides no authority for finding that there is no violation of the ex post facto clause. In this case, I would hold that the amendment to the matrix guidelines is a substantive change which detrimentally affects appellant, and that, therefore, the Commission’s retroactive application of the amended guidelines constitutes an ex post facto law. I would further hold that in order to avoid the prohibition against ex post facto laws in the future the Commission must use those objective guidelines in effect at the time of the commission of the crime, when such guidelines exist.

This conclusion is in accord with a recent decision of the United States Court of Appeals, Seventh Circuit, in Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982), but in apparent conflict with three cases issued by this court from which I would now recede. In Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); and Hurst v. Florida Parole and Probation Commission, 418 So.2d 444 (Fla. 1st DCA 1982), this court held that it is not a violation of the ex post facto clause for the Commission to use a matrix guideline which is not in effect at the time of the crime in determining a prisoner’s PPRD. These decisions attempt to distinguish themselves from Weaver, on the basis of the statutory discretion retained by the Commission in establishing prisoners’ release dates. Section 947.172, Fla.Stat. (1981), grants the Commission discretionary authority to aggravate or mitigate a matrix time and set a release date above or below the matrix time. In contrast to the matrix guidelines involved in Britt, Overfield and Hurst, the statutory gain-time provisions in Weaver automatically reduced, without discretionary decision-making, the time to be served. Based on this distinction, the Britt and Overfield court reasoned that since the Commission retained discretion to set a release date above or below the matrix time, the retroactive application of an amended matrix guideline which had the effect of uniformly increasing the matrix time ranges did not constitute an increase in punishment and was not, therefore, illegal.

The decision by the United States Circuit Court of Appeals in Welsh, supra, explains why I believe the holding in the instant case to constitute an improper application of the rule in Weaver. In Welsh, the State of Illinois had significantly changed the statutory criteria for parole eligibility after the date of Welsh’s crime. At the time of Welsh’s crime the emphasis had been on preventing further crimes by the particular candidate for parole (special deterrence). Thereafter, the criteria were amended to reflect a philosophy of general deterrence — that a prisoner should not be paroled so long as his incarceration might deter other potential offenders. Welsh’s application for parole was considered under general deterrence criteria, and he argued that this contravened the ex post facto clause of the United States Constitution. Citing Weaver as authority, the court in Welsh agreed on the ground that the new criteria altered the Parole Commission’s discretion in determining parole eligibility and resulted in a substantial harm to Welsh. Id., at 331. In rejecting the State’s defense to the ex post facto challenge the court went to great length to dispel what it called “two misconceptions” concerning the successful assertion of an ex post facto claim. First, the court stated that a prisoner does not have to show that he has a vested right to be paroled. Second, the court explained that it is not an answer to an ex post facto challenge to say that parole is a matter of “legislative grace.” On that point, the court added that while it is true that parole is commonly referred to as a matter of grace, it is more accurate to say that a prisoner’s entitlement to parole lies in the discretion of the parole board. Id., at 328. In recognition of this fact, the court in Welsh concluded by stating that:

Even discretionary decisions are made under some constraints. We hold that the constraints on the Parole Board’s discretion in Welsh’s case must be those contained in the statute and regulations that were in effect in 1962 [the date of Welsh’s crime], not those subsequently enacted.

Id., at 328.

As in Welsh, I believe that the Weaver decision requires a finding that the constraints on the Parole Commission’s discretion must be those contained in the statute and regulations in effect at the time of the prisoner’s crime. There can be no question that the matrix guidelines place constraints on the Commission’s exercise of discretion in setting a prisoner’s release date, and that the new guidelines have altered the Commission’s discretion so as to delay a prisoner’s eligibility for parole. While the Commission has discretion to fix a release date above or below the matrix time, that discretion is constrained by the matrix guidelines. The matrix time is always the reference point from which the Commission begins the exercise of its discretionary authority. Thus, when the matrix guidelines are amended so that the matrix time ranges are uniformly raised, as was done in 1981, and those guidelines are retroactively applied, this necessarily delays a prisoner’s eligibility for parole. For example, in May’s case when his PPRD was initially set under the pre-1981 guidelines the aggregate total of the matrix times for all of the crimes that were scored at that time equalled 83 months. For the same crimes, under the 1981 guidelines, the Commission assessed May a matrix time of 308 months resulting in an 18 year and 9 month (225 months) increase in May’s matrix time. Although the Commission chose to aggravate May 151 months under the pre-1981 guidelines but not under the 1981 guidelines, it is obvious that even when the aggravation factor is considered, May’s eligibility for parole is still substantially delayed by a total of 6 years and 2 months (74 months) all because he was convicted of a crime for which he was given a one year sentence. We note that this 74 month enhancement in May’s PPRD does not take into account the 4 years that were added to his release date because of his latest conviction which triggered the retroactive application of the new guidelines. Moreover, we note that May’s release date could have been further delayed by the Commission’s decision to aggravate May and set his release date above the matrix time, which the Commission was free to do. From the above, it is clear that the Commission’s discretion in setting a release date above or below the matrix time is always going to be a direct function of the matrix time and the matrix guidelines used to calculate the matrix time. Likewise, it is equally clear that whenever the guidelines are uniformly amended to increase the time ranges, this inevitably alters the Commission’s discretion and detrimentally affects prisoners by delaying their eligibility for parole.

For the reasons set forth in the above dissent, I would reverse the order of the Commission in establishing appellant’s PPRD and remand the matter to the Commission with instructions to reinstate appellant’s original PPRD for the crimes that were scored under the pre-1981 guidelines and to reestablish a PPRD for appellant’s latest conviction under the matrix guidelines in effect at the time of that crime. To the extent that Rule 23-21.18(1) and (3), Fla.Admin.Code, authorizes the Commission to retroactively apply matrix guidelines not in effect at the time of the crime, I would declare it invalid.

I would also certify the following question to the Florida Supreme Court as presenting a question of great public importance:

When matrix guidelines are in effect at the time of the commission of a crime, does the Commission violate the ex post facto clause by determining a prisoner’s presumptive parole release date based on the retroactive application of amended matrix guidelines which uniformly increase the matrix times?


author: BOOTH, Judge. WENTWORTH, Judge,

text:
    SEAVIEW HOTEL and Old Republic Insurance Company, Appellants, v. Onesimo IRIZARRY, Appellee.
    No. AL-253.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      Mary Ann Stiles of Stiles & Livingston, Tampa, and John F. McMath, Miami, for appellants.
    Howard L. Silverstein of Silverstein & Heilman, Miami, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from an order in a workers’ compensation proceeding awarding wage loss benefits and costs, and, based on a finding of bad faith, attorney fees. We affirm the deputy’s award of wage loss benefits and costs but set aside the attorney fees award and remand for a separate hearing and specific findings of bad faith to support the award.

Section 440.34(2)(b), Florida Statutes (1979), provides for an award of attorney fees for bad faith on the part of the carrier and requires that any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding. In Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981), this court interpreted Section 440.34(2)(b), holding that, although the deputy need not conduct a completely separate hearing on the question of bad faith, “the question of entitlement to attorney’s fees on the basis of bad faith [must] be specifically litigated as a separate issue with factual evidence presented going directly to that issue.” As held in Embry-Riddle v. Vestal, 399 So.2d at 1035, “[t]he deputy may not simply infer from general testimony that bad faith exists.”

The language of Section 440.-34(2)(b), Florida Statutes (1979), is mandatory. The parties must specifically litigate the issue of bad faith in the manner required by Embry-Riddle, supra, which the record does not reveal was done in this case. The deputy’s inference of bad faith from the general testimony does not meet the requirements of the statute and is therefore reversed.

The award of wage loss benefits and costs is affirmed and the cause remanded for further proceedings consistent herewith.

McCORD, J., concurs.

WENTWORTH, J., specially concurs, with opinion.

WENTWORTH, Judge,

concurring specially.

I agree with the majority holding because the issue of bad faith was not raised in the proceedings below. A general claim for attorney’s fees does not per se constitute an allegation of bad faith. I would point out, however, that general testimony may constitute competent substantial evidence supporting or refuting an allegation of bad faith when it is specifically raised. See Embry Riddle v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

      . Florida Erection Service v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981) discusses the broad discretion of the deputy commissioner in determining bad faith of the carrier as a basis for the award of attorney fees; but, in that case, a separate hearing had been held on the issue of bad faith.


text:
    STATE of Florida, Appellant, v. Ronald Hoyt BURRIS, Appellee.
    No. AL-395.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.

      Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellant.
    Brandt W. Davis, Asst. Public Defender, for appellee.
   WENTWORTH, Judge.

The state appeals from an order granting appellee’s motion for discharge, filed pursuant to Florida Rule of Criminal Procedure 3.191(a). We affirm.

Appellee and several co-defendants were arrested on September 11, 1981, and charged with trafficking in cannabis. On December 10, 1981, a hearing was held on the state’s motion to continue, or in the alternative to extend, the limits of speedy trial requirements under the cited rule. Judge Willis denied the motion to extend but granted the motion for continuance and continued the case until February 4, 1982. On February 4, the parties appeared before Judge Cooksey, and the state again requested a continuance or extension of time under the rule. Judge Cooksey granted the continuance but stated “You [the prosecution] can present me some law relative to the matter of extending the speedy trial.” There was no order entered, oral or written, extending the time under the rule, although the case was continued until April 22, 1982. On March 22, 1982 appellee filed a motion to discharge alleging that the 180-day speedy trial time expired on February 9, 1982. The motion was argued before Judge Cooksey on April 16,1982 and was granted.

In Rogers v. Keating, 411 So.2d 231 (Fla. 5th DCA 1981), the court held that where a continuance is granted for exceptional circumstances during the speedy trial period and the court reschedules trial to a date certain, the speedy trial period is extended to the rescheduled trial date. Under these circumstances, the continuance satisfies Rule 3.191(d)(2). Id. at 232. Rogers does not hold that the existence of the requisite exceptional circumstances may be assumed when a trial is continued beyond the expiration of the speedy trial date. On the contrary, the state has the burden of proving that the asserted exceptional circumstances exist and their existence “will not be ... presumed from the circumstances.” Stuart v. State, 360 So.2d 406 (Fla.1978).

In this case the state was given every opportunity to present evidence and law in support of its motion and consistently failed to do so. At no time did the circuit court find that exceptional circumstances existed for extending the speedy trial time; nor would such a finding have been supported by the instant record had it been made. The order discharging the defendant is therefore affirmed.

McCORD and BOOTH, JJ., concur.

      . The state did not present evidence in support of its motion for extension of the speedy trial time at the December 10, 1981 hearing, and the record does not reflect the existence of any exceptional circumstances which would have warranted granting the state’s motion at that time.

      . At the February 4, 1982 hearing, the prosecutor argued, in support of the motion, that he was unable to locate one of his two key witnesses because he had “hidden himself or secluded himself.” However, no evidence was presented that the absence of the witness was “unforseeable and unavoidable.” Fla.R.Crim.P. 3.191(f).

      . Fla.R.Crim.P. 3.191(f).


text:
    In the Interest of C.S., A Child. Henry BROWN, Appellant, v. R.A. GREEN, Jr., Appellee.
    No. AM-111.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    James A. Sawyer, Jr., Asst. Dist. Ill Counsel, Ocala, and J.E. Hodges, Dist. Ill Legal Counsel, Gainesville, Dept, of Health and Rehabilitative Services, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We reverse appellant’s adjudication of contempt and imposition of a fine of $50.00 predicated upon his failure to execute an order from the circuit court commanding that a juvenile, C.S.,.be taken into custody.

Appellant, an intake worker for the Department of Health and Rehabilitative Services, does not urge that he was not properly authorized to execute the court’s pick-up order. Section 39.06(9), Florida Statutes, provides:

All process and orders issued by the court shall be served or executed as other process and orders of the circuit court, and, in addition, may be served or executed by authorized agents of the department at the department’s discretion.

We agree with the trial court’s interpretation that the statute confers discretion upon the Department to authorize its agents to serve or execute process, and does not permit the exercise of discretion by the individual agents to determine their own authority-

However, we must reverse the adjudication of contempt because the uncontro-verted evidence shows that appellant never received a copy of the order, had no notice of what disposition it required him to make of the child, and that he did everything he reasonably could to see that the court’s order was carried out, including attempting to reach the trial judge at least five times on the day in question to inquire about this particular order.

It was not necessary, of course, for appellant to have a copy of the order actually in his possession in order to execute it. See, Section 901.16, Florida Statutes; and, Cf. Riley v. State, 421 So.2d 792 (Fla. 3rd DCA 1982) (execution of search warrant valid notwithstanding the officers did not have search warrant in possession upon entering the premises). Furthermore, whether or not appellant’s conduct was reasonable, or in accord with or contrary to customary practices of HRS intake officers, is not the issue. Section 38.23, Florida Statutes (1981), defines contempt as “[a] refusal to obey any legal order,” made by the judge in connection with the business of the court. The evidence in this case falls short of proving a “refusal to obey.”

REVERSED.

LARRY G. SMITH, SHAW and .TOA-NOS, JJ., concur.