author: HUBBART, Chief Judge.

text:
    Leo HENZEL, Petitioner, v. The STATE of Florida, Respondent.
    No. 77-2631.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 8, 1980.

      Michael J. Osman, and Robert M. Duboff, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for respondent.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central issue presented for review is whether a trial court’s alleged failure to recall accurately certain testimony prior to rendering a verdict in a non-jury criminal trial constitutes a legally sufficient ground to set aside a subsequently entered criminal conviction and sentence on a petition for a writ of error coram nobis. We hold that such an alleged failure to recall testimony cannot constitute a valid ground for coram nobis relief. We accordingly, deny the petitioner’s original application filed in this court for permission to file a petition for a writ of error coram nobis in the trial court.

I

The facts pertinent to the above issue are as follows. On March 8, 1965, the petitioner Leo Henzel was charged in seven infor-mations with grand larceny by fraud [§ 811.021(l)(a), Fla.Stat. (1965)] in the Circuit Court for the Eleventh Judicial Circuit of Florida. The petitioner entered a plea of not guilty and waived trial by jury. The petitioner was subsequently tried non-jury at four separate hearings on five of the above informations which had previously been consolidated for a single trial. At the conclusion of the evidence, the trial court found the petitioner not guilty on four of the above informations and guilty on one of the above informations. On January 20, 1967, the petitioner was sentenced to five years imprisonment by the trial court. On appeal, this court affirmed and subsequent certiorari review was denied. Henzel v. State, 212 So.2d 92 (Fla.3d DCA), cert. denied, 218 So.2d 165 (Fla.1968), cert. denied, 394 U.S. 967, 89 S.Ct. 1303, 22 L.Ed.2d 570 (1969).

The petitioner has since been engaged in over ten years of post-conviction relief litigation. He filed (a) two petitions for a writ of habeas corpus in the federal court, which petitions were either dismissed or denied, see Henzel v. State, 235 So.2d 358, 359 (Fla.3d DCA 1970); (b) a motion to vacate judgment and sentence under former Fla.R. Crim.P. 1.850 [now 3.850], which was denied by the trial court and affirmed on appeal, Henzel v. State, 235 So.2d 358 (Fla.3d DCA 1970); and (c) a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850 which was denied by the trial court and no appeal was taken therefrom. During the course of this litigation, the petitioner completed his five year sentence previously imposed and was released from prison.

The petitioner thereupon filed a petition for a writ of error coram nobis in the trial court, contending that he was deprived of due process of law because there was no evidence in the record to support his conviction. The trial court,- after a full hearing, entered a written order granting the petition, but later, upon the state’s motion, subsequently vacated this order on the ground that it had no jurisdiction to issue a writ of error coram nobis because the petitioner had not first sought permission from this court to file the instant petition. On appeal from the latter order of vacation, this court affirmed and subsequent certio-rari relief was denied. Henze1 v. State, 365 So.2d 172 (Fla.3d DCA 1978), cert. denied, 372 So.2d 469 (Fla.1979).

On August 24,1979, the petitioner filed in this court his first application for leave to file a petition for a writ of error coram nobis in the trial court, relying entirely on the above trial court order, subsequently vacated, which had granted his petition for a writ of error coram nobis. As the application set forth no facts upon which the requested eoram nobis relief could be granted, this court denied the application, but without prejudice to file a legally sufficient application as required by Hallman v. State, 371 So.2d 482 (Fla.1979).

On June 11, 1980, the petitioner filed in this court a second application, which is now pending, for leave to file in the trial court a petition for a writ of error coram nobis. In this application, the petitioner asserts as his ground for coram nobis relief that the trial judge failed to recall accurately certain of the complainant’s testimony at the trial due to the truncated nature of the trial which was held in four separate hearings over a period of several months. Specifically, it is urged that the trial court failed to recall the complainant’s testimony that the loans involved in all five informations herein arose from a single business transaction with the petitioner. It is further urged, in effect, that had the complainant’s testimony been accurately recalled, the trial court would have had no choice but to acquit the petitioner on all five informations, instead of only four. The evidentiary proffer made in support of this ground centers entirely on certain statements made by the trial court on the record that it was finding the petitioner guilty on one of the informations and later that this was the one where there was no promissory note. Petitioner claims that the complainant’s trial testimony is at variance with the trial court’s conclusion here.

The state has filed a detailed response to the above application and a full argument has been heard in this cause. We must determine whether this application states a sufficient basis to allow the petitioner to file a petition for a writ of error coram nobis in the trial court. We conclude that it does not.

II

The latest and most definitive statement by the Florida Supreme Court on the law relating to a petition for a writ of error coram nobis is Hallman v. State, 371 So.2d 482 (Fla.1979). In that case, the Court held that a defendant in a criminal case who seeks to collaterally attack his conviction and sentence in the trial court on a petition for a writ of error coram nobis must first obtain permission to do so from the appellate court which originally affirmed his conviction. The Court, speaking through Mr. Justice Alderman, comprehensively summarizes the established requirements which an application for permission to seek coram nobis relief must meet when filed in the appropriate appellate court:

“The requirements of a writ of error cor-am nobis have been set out in numerous cases from this Court. A petition for this writ addressed to the appellate court must disclose fully the alleged facts relied on; mere conclusory statements are insufficient. The appellate court must be afforded a full opportunity to evaluate the alleged facts for itself and to determine whether they establish prima facie grounds. Lamb v. State, [91 Fla. 396, 107 So. 535 (1926)] supra; Washington v. State, 92 Fla. 740, 110 So. 259 (1926); Urga v. State, 157 Fla. 794, 26 So.2d 786 (1946). Furthermore, the petition should assert the evidence upon which the alleged facts can be proved and the source of such evidence. Russ v. State, 95 So.2d 594 (Fla.1957). The function of a writ of error coram nobis is to correct errors of fact, not errors of law. Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934). The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159,19 So.2d 706 (1944).
In considering a petition for writ of error coram nobis, the appellate court has the responsibility to determine the legal effect of the facts alleged upon the previously entered judgment. When the appellate court finds that the facts are sufficient in legal effect, the next step is for the trial court to determine the truth of the allegations in an appropriate eviden-tiary hearing. Chambers v. State, 117 Fla. 642, 158 So. 153 (1934).”
“The general rule repeatedly employed by this Court to establish the sufficiency of an application for writ of error coram nobis is that the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment. Williams v. Yelvington, 103 Fla. 145, 137 So. 156 (1931); House v. State, 130 Fla. 400, 177 So. 705 (1937); Baker v. State, 150 Fla. 446, 7 So.2d 792 (1942); Cayson v. State, 139 So.2d 719 (Fla. 1st DCA), appeal dismissed, 146 So.2d 749 (Fla.1962). In Russ v. State, this Court expressly stated: ‘The showing must be such that if the matters shown had been before the trial court when judgment was entered, the court would have been precluded from entering the judgment.’ 95 So.2d at 597 (emphasis added). This traditional ‘conclusiveness test’ in error coram nobis proceedings is predicated on the need for finality in judicial proceedings. This is a sound principle, for litigants and courts alike must be able to determine with certainty a time when a dispute has come to an end.” Id., 371 So.2d at 484-485.

Ill

It is clear that the petitioner’s application fails to satisfy the requirements for coram nobis relief as stated in the Hallman decision. As such, the petitioner’s application must be denied.

A

First, the application asserts no new facts which were unknown to the trial court, the petitioner or petitioner’s counsel at the time of the original trial. Indeed, all the facts the petitioner relies upon were revealed at the original trial and nothing new has since come to light. The assertion that the trial court may have failed to recall accurately certain of these facts at the time it rendered its verdict at trial, even if true, cannot, under any view, amount to the revelation of new facts or evidence, previously unknown, sufficient to trigger coram nobis relief.

B

Secondly, the alleged failure of the trial court to recall certain evidence at trial does not satisfy the conclusiveness test for coram nobis relief. There is no showing in this application, nor could there ever be, that had the trial court recalled the facts in the manner now urged by the petitioner, it would have been conclusively precluded from entering the criminal judgment herein. At best, petitioner can only speculate what the trial court might have done under different circumstances; indeed, he concedes that he has no way of knowing what was in the mind of the trial court when it rendered its verdict. We deal here with the subjective mental processes of the trier of fact and consider it totally unprovable that a different factual recall of the evidence would have conclusively led to an acquittal.

C

Finally, we agree with the state that the petitioner’s asserted ground for relief amounts, in effect, to an attack on the sufficiency of the evidence adduced at trial to support the petitioner’s conviction. The petitioner essentially complains that the state’s evidence at trial was legally insufficient to establish his guilt beyond a reasonable doubt and that the trial court misconceived the nature of the evidence before it in reaching an opposite conclusion. As such, the ground relied upon centers on an alleged trial court error of law, rather than of fact, and, accordingly, constitutes an invalid ground for coram nobis relief.

The application for permission to file a petition for a writ of error coram nobis in the trial court is denied.

      . Post-conviction relief under Fla.R.Crim.P. 3.850 was no longer available to the petitioner as he was not “in custody” under the sentence which he attacked having already completed serving said sentence. Wingard v. State, 210 So.2d 472 (Fla.2d DCA 1968); Fla.R.Crim.P. 3.850.

      . The Court specifically held that its decision in Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), was not applicable “where coram nobis [relief] is sought in a criminal case.” Hallman v. State, 371 So.2d at 484. The Court also held that newly discovered evidence could not be a basis for relief upon a motion to vacate under Fla.R.Crim.P. 3.850. This latter holding appears to be in conflict with the following cases which announce a rule that newly discovered evidence, such as a third party confession, may be a valid ground for post-conviction relief under Fla.R.Crim.P. 3.850. State v. Gomez, 363 So.2d 624 (Fla.3d DCA 1978); Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975); Kellerman v. State, 287 So.2d 702 (Fla.3d DCA 1973); Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969); Diamond v. State, 233 So.2d 418 (Fla.4th DCA 1970). See also State v. Pitts, 241 So.2d 399 (Fla.lst DCA 1970), vacated, 247 So.2d 53 (Fla. 1971). By implication, it would seem that on this point the above cases no longer represent good law. Newly discovered evidence pointing to the innocence of the accused may only be raised on a petition for a writ of error coram nobis providing it otherwise meets the established requirements for coram nobis relief.

      . We assume, without deciding, that the evi-dentiary showing made in this application was sufficient to establish that the trial court failed to recall accurately the complainant’s testimony as to all the subject loans arising from a single business transaction. We are frankly rather skeptical that the trial court’s statements on the record reasonably lend themselves to such an inference, but have resolved not to rest our decision here on such a basis, as, in any event, the ground asserted for coram nobis relief is legally insufficient.

      . It should be noted that the petitioner could have raised this alleged error of law on his direct appeal to this court, but chose, for whatever reason, not to do so. Henzel v. State, 212 So.2d 92 (Fla.3d DCA 1968). It would also appear that this error could have been raised, but was not, on petitioner’s various motions to vacate filed under Fla.R.Crim.P. 3.850 during the five year period he was in custody under the instant sentence. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and cases collected therein. He cannot now raise it through indirection on a petition for a writ of error coram nobis. Criminal litigation of this sort is not endless and has to terminate at some point as Judge Carroll prophetically noted ten years ago in this very litigation. Henzel v. State, 235 So.2d 358, 359 (Fla.3d DCA 1970) (Carroll, J., concurring).


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    Jeffrey Collins SIZEMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-940.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1980.
    Rehearing Denied Dec. 12, 1980.

      Rex Ryland, Jr., Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.

       Judge Pearson participated in the decision in this case but did not hear oral argument.

   NESBITT, Judge.

The issue presented on appeal is whether the consent given by Sizemore, defendant below, which allowed police officers to have a trained narcotics dog sniff his briefcase, was valid and therefore established the probable cause necessary to obtain a warrant to search the briefcase. We hold that the trial court properly refused to suppress the evidence upon its finding that the defendant did validly consent and affirm the conviction.

After a non-jury trial, the defendant was convicted of: (1) possession of cocaine with intent to sell; and (2) unlawful possession of marijuana. He was adjudicated guilty and given a split sentence of two years in the state penitentiary followed by five years probation. The defendant contends that the trial court improperly refused to suppress the tangible evidence which was admitted over his objection. At the suppression hearing which preceded the trial, only police officers testified. The evidence, therefore, is essentially uncontradicted and unrefuted and must be construed in a light most favorable to the state.

The record reveals that Sizemore was first observed by Detectives McGavock and Wolfe in the main lobby of the Miami International Airport at approximately 10:15 A.M. on January 2, 1979. The detectives were seated across from the National Airlines ticket counter when they observed the defendant who was dressed in a suit, wore hiking boots, and was carrying a grey American Tourister briefcase. The defendant talked with a Continental Airlines ticket agent and then proceeded past the National counter to the Southern Airways and Braniff ticket counters to get a flight to Denver, Colorado. In the interim, Detective Wolfe learned from the Continental agent that Sizemore held a ticket for an earlier Continental flight to Denver but had missed it. Wolfe also learned from another ticket agent that the defendant had no luggage other than the briefcase he carried. Ultimately, Sizemore went to the departure area of Concourse G where, in doing so, he went through and cleared an FAA checkpoint. The detectives considered it unusual that the defendant went to his departure area before noon to await a 3:00 P.M. flight to Denver.

It was there the detectives first approached the defendant. When they did, they displayed their badges and advised the defendant that they were police officers searching for narcotics. The officers did not tell the defendant that he was under arrest nor did they physically touch him. They were polite and courteous while they engaged him in conversation. The defendant appeared to be mentally and physically alert and was cooperative.

The detectives asked Sizemore for identification. He showed them his Florida driver’s license and a one-way ticket to Denver, both of which correctly identified him and were promptly returned. When Sizemore was asked why he wore such light-weight clothing (a suit without a topcoat) at that season of the year with Denver as his intended destination, he replied that he was wearing thermal underwear.

Detective McGavock asked the defendant if he might look inside his briefcase. The defendant questioned whether he had to let them look, to which McGavock replied that he did not. The defendant then told them that he did not want them to do so. Detective Wolfe then asked the defendant if he had any objection to having a narcotics dog sniff his briefcase. Sizemore stated that he had no objections but once again indicated he did not want his briefcase opened. He told the detectives that there was “nothing” in it.

Sizemore’s primary concern was about missing his flight. The detectives told him it would take about thirty minutes for the trained narcotics dog and its handler to arrive at the airport and suggested it would be more convenient for all concerned to go to the baggage receiving portion of the airport. The detectives further explained to the defendant how a baggage sniff lineup is conducted when a trained narcotics dog is used. The detectives and the defendant went into a concession shop to drink orange juice where they made small talk while waiting for the dog and its handler to arrive. During this time, the defendant had custody of his briefcase. At approximately 11:15 A.M., the narcotics dog and its handler arrived. The defendant and the two detectives had already moved downstairs to the baggage claim area.

On arrival at the baggage claim area, one of the detectives took Sizemore’s briefcase from him and placed it with the other bags to form a baggage sniff lineup. At that point, Detective McGavock specifically asked the defendant if it was all right for the narcotics dog to sniff his briefcase. Again, the defendant stated he had no objection to the sniff of his briefcase but wanted to make sure that they “just don’t open it.” He reiterated the dog would not find anything. The defendant watched the baggage sniff lineup and the ensuing sniff without objection.

Prior to his arrest, the detectives never advised Sizemore of his constitutional rights (other than his right to refuse a search of his briefcase), nor did they advise him that he was free to leave. At no time did Size-more inform the officers that he desired to go on his way.

When the narcotics dog was presented to the baggage sniff lineup, it reacted in a manner consistent with its training indicating the presence of contraband in the defendant’s briefcase. Sizemore was then taken into custody and given his Miranda warnings after which the detectives obtained a search warrant for the briefcase.

The defendant does not contend on appeal, nor did he contend in the trial court, that the dog sniff did not constitute probable cause for the issuance of the search warrant which ultimately led to the seizure of more than one-half pound of cocaine and five grams of marijuana from his briefcase.

At the conclusion of the suppression hearing, the trial court found that the defendant:

1. ... was not “detained” by Officers McGavock and Wolfe, nor forced to stay in their presence, nor made to feel uncomfortable by their presence, but was in fact free to leave should he have chosen to do so.
2. ... knew he did not have to give consent to a search, nor give consent to allow a police dog to sniff or otherwise evaluate his luggage.
3. ... was not coerced nor tricked by the police officers into giving his consent for the police dog to sniff his luggage.
4. ... was not pressured by time or any of those factors which would have forced him to consent to something simply to get it over with.

Relying upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the defendant stoutly maintains his right to a reasonable expectation of privacy, as to the contents of his briefcase, was violated. He argues that this is especially so in view of his refusal to permit officers to search his briefcase and by limiting and conditioning his consent solely to a canine sniff “inspection” of his briefcase. Size-more directs our attention to Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979) to show that, under the factual pattern presented, his consent to the canine sniff was not given. We fine that there is a marked distinction between the present case and that of Villari in which the defendant’s consent was deemed withdrawn when he questioned the officer’s authority to further search without a warrant. Here, Size-more never questioned or remonstrated against the canine inspection of his briefcase.

The state, relying on State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980) and Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980), counters with the argument that there was no Fourth Amendment intrusion upon the defendant’s rights because the olfactory inspection by the trained narcotics dog occurred in a public lobby. We do not consider those cases, relied upon by the state, applicable to the present case because Sizemore remained in possession of his briefcase and thereby maintained his right of privacy as to its contents until just prior to the time the briefcase was presented for the dog sniff. It was only then that the officers actually took the briefcase from the defendant’s personal custody. Without the defendant’s valid consent, it would have been practically impossible for the briefcase to have been presented to the trained narcotics dog for an olfactory inspection. Consequently, the resolution of the question of an invasion of the defendant’s Fourth Amendment right to privacy in this case is governed by his valid consent to the dog sniff.

Sizemore further contends that consent was presumptively tainted because he had been “seized” or “detained” within the meaning of the Fourth Amendment prior to tendering his consent and consequently the alleged consent was only the product of his acquiescence to a display of lawful authority. We find it unnecessary, in this case, to specifically determine whether the defendant was “seized” or “detained” because, assuming that he was, it is clear that any taint arising from an unlawful police action was clearly dissipated by clear and convincing proof of an unequivocal break in the chain of illegality. Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). In addition, viewing the totality of the circumstances, we find the defendant’s consent to the canine sniff was freely and voluntarily given. In that regard, this case, in many respects, is stronger than the parallel situation presented in United States v. Mendenhall, 446 U.S. 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In Mendenhall, a young black woman, who had been told she had a right to decline a search, accompanied a drug enforcement administration (DEA) agent to a DEA office where she agreed to disrobe and submit to a strip search. Under the consent theory, a majority of the United States Supreme Court held that the defendant had freely and voluntarily submitted to the search. Applying this approach, it is apparent that the state, in this ease, discharged its burden by clear and convincing evidence to show that Sizemore freely and voluntarily consented to the canine sniff of his briefcase. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Norman v. State, 379 So.2d 643 (Fla.1980).

Sizemore, much like the defendant in Mendenhall, constitutionally did not have to be advised of his right to refuse to consent in order to make the search or sniff a valid one. Schneckloth v. Bustamonte, supra; Taylor v. State, supra, 355 So.2d at 185. However, the defendant’s knowledge regarding his right to refuse the police search of his briefcase was a relevant factor to be considered by the court in determining the voluntariness of the consent. Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).

The pivotal factor in this case was that Sizemore had a thirty-minute interval, while awaiting the arrival of the dog and its handler, to reflect upon his impending plight. The police officers accorded him the right to refuse a direct search of his briefcase and he had a reasonable expectancy that they would accord him the same freedom against a canine sniff. The detectives repeatedly asked Sizemore if he had any objections to having the dog sniff his briefcase and each time he indicated that he did not. The defendant should have been under no illusions. He knew he was dealing with narcotics officers and the marvelous olfactory powers of their trained narcotics canine. Although his consent was specifically and conditionally given only to the canine sniff, the time interval, his knowledge about the police purpose, and the repeated warnings were sufficient to break any presumptive taint which may have arisen.

Under these facts and viewing the totality of the circumstances, we find that the state met its burden, by clear and convincing evidence, to show that any taint resulting from the presumptive illegality was dissipated. United States v. Mendenhall, supra; Schneckloth v. Bustamonte, supra; Norman v. State, supra; Bailey v. State, 319 So.2d 22 (Fla.1975). The defendant's consent to the canine sniff was valid and the trial court properly refused to suppress the evidence obtained as a result of it. The defendant’s conviction is affirmed.


author: PER CURIAM.

text:
    Gary Wayne STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 80-1640.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Rehearing Denied Dec. 17, 1980.
    Jeffery Garmel, of Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    No appearance on behalf of appellee.

      . This appeal is pursuant to Rule 9.140(g) of the 1977 Rules of Appellate Procedure. This Court has not requested a response from the State.

   PER CURIAM.

AFFIRMED on the authority of Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). The appellant’s motion to file a brief concerning the retroactivity of Roberts v. State, 335 So.2d 285 (Fla.1976), is denied, but this Court has considered the memorandum accompanying the motion for leave to submit brief which deals with this issue. The denial of defendant’s 3.850 motion in the trial court is hereby affirmed.

AFFIRMED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


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

text:
    Debra TEAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 79-215.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Rehearing Denied Nov. 25, 1980.

      James K. Freeland, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Debra Teague, charged with second degree murder, was convicted of the lesser included offense of manslaughter. She appeals her judgment and sentence.

Two points have been raised on appeal: 1) whether the evidence was sufficient to sustain the verdict, and 2) whether it was improper for the state attorney over the objection of the defense to elicit from the defendant that she was engaged in prostitution in the hours prior to the shooting.

We find no harmful error and affirm.

While entering her room in the early hours of the morning, appellant, a resident of a motel, was surprised by the victim, Sam Hill, who forced his way into the room.

After a considerable period of argument, appellant left the room to call a cab for Sam and then returned. The cab driver said he left whep he saw her with a gun. Appellant claims Sam was beating her and to get him to stop she fired a shot into the mirror. Finally, after more argument and repeated violence, she shot and killed Sam.

Appellant contends that her claim of self-defense or justification stands uncon-tradicted and thus, as a matter of law, the conviction must be overturned. However, there is evidence in the record to contradict her version. The state introduced evidence to show that her injuries were not substantial. The bruises or swellings, limited to a cut on the lower surface of her lip, required no medical attention. She was able to leave the room and call a cab but she did not call for help nor did she call the police. She claims that she got the pistol after the cab driver left; the cab driver said he saw her with it behind her back. This evidence contradicts appellant’s testimony that she was repeatedly assaulted and feared for her life.

A defendant who relies on self-defense has the burden of producing or going forward with the evidence. Robbins v. State, 312 So.2d 243 (Fla.2d DCA 1975); Bolin v. State, 297 So.2d 317 (Fla.3d DCA 1974). To justify a homicide on the grounds of self-defense, the situation must be such as to induce a reasonably prudent person to believe that danger was imminent and that there was a real necessity for the taking of a life. Darty v. State, 161 So.2d 864 (Fla.2d DCA 1964). Even though the defendant is the only eyewitness to the shooting, the jury is not required to accept her testimony as the absolute truth; a defendant’s testimony can be accepted or rejected in whole or in part depending on the evaluation by the jury of its credibility in light of the attending circumstances established by other evidence. Id at 872. It is the duty of the jury to weigh conflicting evidence adduced at trial; the appellate court should not overrule the jury if there is competent, substantial evidence to support the verdict. Shiver v. State, 327 So.2d 251 (Fla. 4th DCA 1976).

As to the second point, appellant contends that the court should not have permitted the state to inquire into her being a prostitute over her objection. We do not think this was harmful error because appellant had earlier testified without objection that the first time she had met Sam he paid her $30.00 for her company for a part of the evening.

AFFIRMED.

COBB and SHARP, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Lenard B. DOLEN, Jr., Respondent.
    No. 80-565.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 1980.
    Rehearing Denied Nov. 25, 1980.

      Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for petitioner.
    John W. Tanner, Daytona Beach, for respondent.
   WRIT OF CERTIORARI

FRANK D. UPCHURCH, Jr., Judge.

The state petitions for a writ of common law certiorari pursuant to Rule 9.100, Florida Rules of Appellate Procedure, and article V, section 4(b)(3), Florida Constitution, seeking review of a pre-trial order denying the state’s motion for a protective order requesting that the discovery deposition of the victim of a sexual battery be taken out of the presence of respondent.

Respondent and one Clifford Glen Snider were arrested and charged with the sexual battery of the woman respondent now seeks to depose. Snider has been convicted and is now serving his sentence for that offense. The state alleges that the witness is a woman of Peruvian descent in her mid-fifties who speaks little or no English, suffers from a heart condition and is fearful of confronting respondent. The witness has already testified in two preliminary hearings and at the trial of Snider.

The record reflects that the trial judge based his determination on the belief that the sixth amendment right to confrontation allowed, if not required, defendant’s presence at a discovery deposition and on the failure of the state to present contrary case authority.

Respondent contends that the trial judge’s denial of the protective order does not violate the essential requirements of law which is necessary for this court’s assumption of jurisdiction. The basis for this contention was that at the hearing the state failed to raise the question of the witness’s heart condition or her physical health, and that the litigants must first present an issue to the trial court rather than raise it for the first time on an appellate level.

Article I, section 16 of the Constitution of the State of Florida, states:

In all criminal prosecutions the accused shall ... have the right ... to confront at trial ¿dverse witnesses. (Emphasis added.)

The taking of a deposition of a witness which may or may not be used at trial cannot be construed as a part of the trial within the above constitutional mandate.

The right to take a deposition in criminal proceedings for discovery purposes is afforded by Rule 3.220, Florida Rules of Criminal Procedure. Prior to the adoption of the criminal rules in 1967, a defendant in a criminal prosecution had no right to take discovery depositions. State v. Lampff, 155 So.2d 10 (Fla. 2d DCA 1963), appeal dismissed, 166 So.2d 891 (1964). It is significant to note that the rule permitting a deposition to perpetuate testimony requires the presence of the defendant unless the defendant who is not in custody waives his right to appear. In State v. Basiliere, 353 So.2d 820 (Fla.1978), the Florida Supreme Court discussed the two types of depositions in the context of defendant’s sixth amendment right of confrontation. In that case, the defendant was charged with aggravated battery upon Edward Daly. Defense counsel moved to take the deposition of Daly pursuant to Rule 3.220(d). Defendant, in custody, was not present. Daly died before the trial. The state then moved to use the deposition as substantive evidence. The court held that the deposition was inadmissible and that to have perpetuated the testimony, the state should have proceeded under Rule 3.190(j) which requires the defendant’s presence during the examination of the witness. Because defendant was not present and his counsel could not have been expected to conduct an adequate cross-examination, the use of the deposition would have violated defendant’s sixth amendment right of confrontation. Unless the provisions of Rule 3.190(j) are also met (i. e., defendant is present at the deposition), depositions taken pursuant to Rule 3.220(d) (i. e., discovery depositions) may be used only for contradiction or impeachment and not as substantive evidence. Id. at 835.

The sixth amendment guarantees the right of an accused to confront the witnesses against him; however, the primary interest secured by the clause is the right of cross-examination rather than the right of physical confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). An adequate opportunity for cross-examination may exist even in the absence of physical confrontation Douglas v. Alabama, 380 U.S. 414, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The confrontation or examination guaranteed by the sixth and fourteenth amendments is confrontation at trial. Nelson v. O’Neal, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). Thus, an out of court statement made in the absence of the accused may be admitted as evidence as long as the declar-ant testifies at the trial and is subject to full and effective confrontation. Id. at 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222. The scope of the “trial” has not been extended to discovery depositions as they are not true judicial proceedings.

There is no rule of criminal procedure, statute or constitutional provision mandating the presence of the defendant at a discovery deposition. Thus, his exclusion is a matter of sound judicial discretion. Rule 3.220(d) states: “the defendant may take the deposition.... While the rule contemplates his right to take the deposition, this cannot be construed to give him the right to conduct the questioning if he is represented by an attorney. To afford each defendant in custody an absolute right to attend the taking of each deposition no matter what the location, security, or cost would place an unmeasureable burden upon the state.

In this instance, the state has alleged that the witness, victim of the crime, is in poor physical and mental health and has expressed a deep fear of a close one-to-one confrontation with defendant. In the exercise of its discretion, the court should consider the cost, inconvenience and security of transporting a defendant to the deposition and the effect on the mental and physical well-being of the witness, as well as the detriment to the defendant if he is not able to attend. Here, the state has alleged that a probable and great detrimental effect would occur upon the witness far outweighing any possible benefit the accused may attain by being personally present at the deposition.

The court based its ruling on an absolute right of confrontation contrary to the basic requirements of law due the state. The state has no remedy by appeal. Therefore, we grant certiorari and remand to the trial court for reconsideration of the motion for the protective order to determine whether the potential detrimental effect upon the witness outweighs the interest or benefit to the defendant.

Writ of certiorari is issued and the order denying the state’s motion for protective order is quashed.

DAUKSCH, C. J., and COBB, J., concur.

      . See Tallahassee Democrat, Inc. v. Willis, 370 So.2d 867, 873 n.4 (Fla. 1st DCA 1979)-no judge is present at the taking of a discovery deposition and no rulings or adjudications are made by any judicial authority.


author: SHAW, Judge.

text:
    FOOD FAIR, INCORPORATED; Group VII Services, Incorporated, Appellants, v. Anthony POVALITIS, Appellee.
    No. SS-366.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    Rehearing Denied Dec. 15, 1980.
    Michael S. Rywant of Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellants.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellee.
   SHAW, Judge.

This is an appeal from a workers’ compensation order awarding benefits for disability in excess of physical impairment. The appellants argue that in order for the deputy to award such benefits, based on loss of wage earning capacity, the claimant must attempt a work search within capabilities. We agree that absent a finding by the deputy that the claimant’s disabilities are so massive that a work search is excused the claimant must demonstrate wage earning capacity loss by making a realistic job search within his capabilities.

The claimant suffered a 15% anatomical disability that left him with a 75-pound lifting limitation. His job search was limited to a job application at an unopened grocery store and two attempts at employment that required lifting weights obviously in excess of his limitation. He has a high school equivalency degree with a work history consisting of torch and solder work and bookkeeping. By limiting his search to jobs requiring heavy lifting, he failed to realistically test his wage earning capacity in the job market, thus there has been no demonstration of a wage earning capacity loss in excess of the 15% permanent partial disability rating voluntarily accepted by the appellants. Exxon v. Alexis, 370 So.2d 1128 (Fla.1978); Pantry Pride v. Gonzalez, 882 So.2d 818 (Fla. 1st DCA 1980).

The order is, accordingly, reversed.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


text:
    STATE of Florida, Appellant, v. David BROSMAN, Appellee.
    No. 79-126.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Rehearing Denied Dec. 17, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Stephen M. Goodman, Margate, for appel-lee.
   PER CURIAM.

The appellee was discharged after the state failed to bring him to trial within 90 days of a state requested continuance. However, the record reflects that the appel-lee had previously secured a continuance and thereby waived his right to a speedy trial under the speedy trial rule. Although we have previously held that the state is required to bring a defendant to trial within 90 days of a continuance granted at the state’s request following an earlier defense continuance, those decisions have now been overruled by the Florida Supreme Court. See Butterworth v. Fluellen, 389 So.2d 968, 80 F.L.W. 378 (Fla.1980). Since the discharge herein was predicated upon the rule rejected in Butterworth, supra, we must reverse. However, our reversal is without prejudice to the appellee to seek a discharge predicated upon any alleged violation of his constitutional right to a speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). We express no view on this issue.

Accordingly, this cause is hereby reversed and remanded with directions for further proceedings consistent herewith.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    Ricky Steven WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-137.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    Joel S. Fass of Colodny & Fass, P. A., North Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant, Ricky Steven Walker, was involved in a vehicular accident on September 30, 1978. As a result he was charged with vehicular homicide, leaving the scene of an accident and driving while license revoked or suspended. On August 24, 1979, appellant’s motion for discharge for failure to comply with the speedy trial rule was granted as to two of the charges and denied as to the crime of vehicular homicide. He entered a plea of nolo contendere specifically reserving the right to appeal denial of his motion.

Immediately after the accident, appellant fled the scene. He then returned and was arrested by police officer Thomas Molti-more and charged with leaving the scene of an accident. He was transported to the Hollywood Police Department where he was photographed and fingerprinted and placed in a cell. Police Department records indicate that he was booked on all three charges. Neither police officer Moltimore nor any other state witness knew who completed the arrest, booking and fingerprint cards. Approximately two and one half hours later appellant was removed from the cell and escorted to an interview with officer George Knox, a homicide investigator. Knox was aware that a homicide was involved but he was not aware that any charges had been filed. He read appellant his Miranda warnings and took his statement, whereupon appellant was released in his step-father’s recognizance.

An Information was filed on October 23, 1978 and appellant was arrested for the homicide, booked, and released on bail on May 10, 1979.

The trial court concluded that the criminal conduct involved in the vehicular homicide was separate and apart from the conduct of leaving the scene of the accident. The court then determined that appellant was not arrested for the vehicular homicide until May 10,1979, and that the speedy trial period did not begin to run until that date. This determination was based on findings that the police officer making the initial arrest was unaware that an accident victim had died when he took appellant into custody, and that Officer Knox, although aware of the death, released appellant on the assumption that he had not been formally arrested and charged.

The issue on appeal is whether the crimes of vehicular homicide and leaving the scene of an accident arose from the same criminal episode. If they did then reversal is required because the time periods under the speedy trial rule begin to run when the accused “is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” Fla.R.Crim.P. 3.191(a)(1).

There are several Florida cases which interpret this rule in the context of charges arising out of traffic accidents.

In Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979), Robinson was arrested for reckless driving. Subsequently a charge of manslaughter was filed against him. It was held that the speedy trial time commenced to run on both charges from the time of the original arrest for reckless driving.

Similarly, in Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976) the court held that an arrest for driving while intoxicated precipitated the running of speedy trial for the charge of manslaughter for a death arising out of the same incident.

However, these cases are distinguishable from the instant one. In Robinson the death of the manslaughter victim was caused by Robinson’s reckless driving. The precise conduct, reckless driving, was the sole conduct involved in both charges. Robinson performed one act which had two criminal aspects. Again in Deloach the act of driving while intoxicated caused a death-one criminal episode giving rise to more than one consequence. The conduct resulting in both offenses is not merely related; it is the same conduct.

The same may not be said in the instant case. The accident itself was one criminal episode. From it the manslaughter charge arose. Nothing that happened subsequently had any effect on that conduct or that criminal charge. When appellant fled the scene he committed an entirely separate, unrelated crime. This was new and different conduct. It was an independent criminal episode.

We therefore hold that different time periods for the application of the speedy trial rule were properly used by the trial court, each to run from the time of the arrest on the particular charge involved.

The trial court’s denial of appellant’s motion for discharge is affirmed.

AFFIRMED.

LETTS, C. J. and ANSTEAD, J., concur.


author:
      HERSEY, Judge.
      ANSTEAD, Judge,

text:
    Joseph SANFILIPPO, Appellant, v. LARRY GIACIN TILE CO., INC., Appellee.
    No. 80-494.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1980.
    John B. DiChiara of Di Giulian, Spellacy & DiChiara, P. A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   HERSEY, Judge.

Appellee, Larry Giacin Tile Co., Inc., brought suit against appellant, Joseph San-filippo, attempting to enforce and foreclose a mechanic’s lien against property owned by appellant and improved by appellee. The trial court found that both parties had acted in good faith but that appellee had failed to perfect a mechanic’s lien. Judgment was entered in favor of appellant and each party was directed to bear his own costs and attorney’s fees.

This appeal questions only the correctness of that part of the judgment dealing with costs and attorney’s fees.

Prior to its amendment in 1977, Section 713.29 of the Florida Statutes provided:

In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.

The amendment, Chapter 77-353, effective July 1, 1978, changed this section to read:

In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

There is no question but that appellant was the prevailing party in this action. It is also clear that, prior to the amendment, an award of attorney’s fees to the prevailing party in an action based on Chapter 713 was mandatory. Foxbilt Electric, Inc. v. Belefant, 280 So.2d 28 (Fla. 4th DCA 1973). The issue, then, is whether the amendment changed the character of this requirement from mandatory to permissive.

We have previously concluded that the purpose of the statute in question was to make the prevailing party whole while at the same time discouraging specious claims and defenses. Foxbilt Electric, Inc. v. Belefant, supra. We perceive no change in legislative intent indicated by the two phrases added by the amendment. Accordingly, we hold that Section 713.29, Florida Statutes (1979) is mandatory and requires the trial court to award an attorney’s fee to the prevailing party. American Insulation of Fort Walton Beach v. Pruitt, 378 So.2d 839 (Fla. 1st DCA 1979).

Appellant’s motion for attorney’s fees for prosecuting this appeal is granted. Prior to the 1977 amendment there was a conflict of authority on this point. We held that an award of attorney’s fees for services in connection with an appeal was appropriate under the statute. Foxbilt Electric, Inc. v. Belefant, supra. The Second District Court of Appeal, in R. F. Driggers Construction Company v. Bagli, 313 So.2d 450 (Fla. 2d DCA 1975) and the First District Court of Appeal, in John T. Wood Homes, Inc. v. Air Control Products, Inc., 177 So.2d 709 (Fla. 1st DCA 1965) developed a contrary line of authority. This conflict has been put to rest by the amendment which mandates attorney’s fees for services “for trial and appeal.”

That portion of the judgment pertaining to costs is not subject to reversal unless an abuse of discretion is demonstrated. Insofar as the trial court specifically found no bad faith here on the part of either party, we can find no abuse of discretion in refusing to award appellant his costs.

We therefore affirm that aspect of the judgment pertaining to costs. We reverse that portion of the judgment dealing with attorney’s fees and remand this cause to the trial court with instructions to ascertain reasonable attorney’s fees for services in the trial court and on this appeal and to enter an award for such fees in favor of appellant and against appellee.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

GLICKSTEIN, J., concurs.

ANSTEAD, J., concurs in part and dissents in part with opinion.

ANSTEAD, Judge,

concurring in part and dissenting in part:

I agree with the majority opinion on the issue of attorney’s fees but I would also direct that appellant be awarded his reasonable costs. There is no basis in the record for denying such costs.


author: HENDRY, Judge.

text:
    Carole MUSS, Appellant, v. Stephen MUSS, Appellee.
    No. 79-1165.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Leff, Pesetsky & Zack and Walter S. Pes-etsky, North Miami Beach, for appellant.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and PEARSON, DANIEL, JJ.
   HENDRY, Judge.

This appeal arises from the circuit court’s final order dismissing plaintiff’s amended complaint seeking modification of a dissolution agreement.

In 1959, the parties, then residents of New York, entered into a separation agreement. The agreement provided, inter alia, for custody and support of the then minor children, a division of real and personal property, a mutual release of all claims between the parties, and periodic payments to the wife. Some years later the agreement was amended by the parties to effect a change in custody of the children. The agreement, as amended, was incorporated into, but not merged with, a final decree of divorce rendered by the New York Supreme Court in 1972 which obligated the husband to support the wife through payments of $15,000 per annum. Both parties subsequently became residents of Florida.

Appellant Carole Muss filed suit in the Dade County Circuit Court in 1978 to have the New York divorce decree established and recognized as a judgment in the State of Florida, and to increase her alimony payments pursuant to Section 61.14, Florida Statutes (1979).

The trial court, applying New York law, dismissed the complaint on the grounds that the facts alleged did not entitle plaintiff to modify the payments, and also that the plaintiff had contractually waived the right to apply for modification of the agreement. It is from this order of dismissal that plaintiff has appealed.

When a spouse seeks modification of a previous separation agreement or judicial award of alimony, Florida courts are governed by Section 61.14, Florida Statutes (1979). Section 61.14(1) provides in relevant part:

(1) When the parties have entered into ... an agreement for payments for, or instead of, support, maintenance, or alimony ... and the circumstances or the financial ability of either party has changed ..., either party may apply to the circuit court ... for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties . .., decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement. . . .

By enacting this statute, the Florida Legislature obviously intended to permit parties to seek modification of their prior alimony agreements, thus abrogating the traditional binding nature of such contractual undertakings. The Florida Supreme Court has upheld this statute against constitutional challenges on' impairment of contract grounds. Frizzell v. Bartley, 372 So.2d 1371 (Fla.1979). Neither Section 61.-14 nor the many Florida cases construing it differentiate between agreements executed in Florida and those from other states: Lopez v. Avery, 66 So.2d 689 (Fla.1953); Lazar v. Lazar, 317 So.2d 854 (Fla. 2d DCA 1975); Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). Thus, we have little doubt that the present agreement is subject to modification under Section 61.14 notwithstanding its foreign origin.

Our attention is directed, however, to paragraph fourteen of the separation agreement itself, which provides, inter alia:

14. The provisions of this agreement shall be incorporated in any judgment or decree of separation, annulment or absolute divorce to be entered in the pending action hereinabove described, or in any other action for separation, annulment, or absolute divorce at any time initiated by either party, but this agreement shall not be merged in any such judgment or decree but shall survive the same and shall be conclusive and binding on the parties for all times. The parties agree that neither party may apply to the court for a modification of any such judgment or decree into which the provisions of this agreement shall be incorporated, with respect to alimony or support provisions, whether pursuant to § 1170 of the Civil Practice Act or any other provision or authority, . . . (emphasis supplied).

While it is clear that the circuit court has the power under Section 61.14 to modify alimony payments and thus abrogate the parties’ prior express agreement, the issue here is whether a court’s authority to modify such an agreement may be exercised when the plaintiff specifically agreed never to seek such modification.

The Fourth District, in confronting this identical issue, has held that the doctrines of estoppel and waiver bar the parties from repudiating their express agreement not to seek modification. Their analysis began with a review of the law governing waiver:

The general rule is that any right may be waived, whether it arises out of the constitution, or is conferred by statute, or secured by contract. .. This rule is limited by the caveat that “a waiver is not allowed to infringe upon the rights of others or to transgress public morals or policy. Thus, if a law protects the public as well as an individual, the protection to the public or state cannot be waived by the individual...”

Turner v. Turner, 383 So.2d 700, 703 (Fla. 4th DCA 1980) (citations omitted).

The sole remaining issue is whether the plaintiff below waived her right to seek modification by assenting to paragraph fourteen of the separation agreement.

Section 61.14 is not, of course, specifically identified in paragraph fourteen of the agreement. However, the plaintiff did unequivocally agree not to seek modification of the agreement under § 1170 of the Civil Practice Act of New York or any other provision or authority, (e. s.) In our view, the last clause of paragraph fourteen clearly contemplates a waiver of all statutory rights permitting modification, including those authorized by Section 61.14.

Moreover, an examination of former CPA § 1170 convinces us that plaintiff intended to waive precisely that right granted her by Section 61.14, in that CPA § 1170 and Florida Statute 61.14 are substantially identical. Indeed, CPA § 1170 was, if anything, broader than the current Florida Statute in providing that the New York courts could grant alimony even in cases where the original judgment failed to grant such relief.

We conclude that the trial court was correct in denying the modification petition since the plaintiff, by her own agreement, conclusively waived the right to petition for modification pursuant to any provision or authority.

In addition, we note that Section 61.14 authorizes modification of alimony, support or maintenance agreements, but not property settlements. Salomon v. Salomon, 196 So.2d 111 (Fla.1967) (and cases cited). Although our disposal of this case makes it unnecessary to determine whether this agreement was one for alimony or was a true property settlement, we note that the parties relinquished all claims upon one another and labeled the agreement unmodifiable, indicating that the agreement constituted a final property settlement of all rights between the parties.

Accordingly, we affirm the final judgment denying the petition for modification.

Affirmed.

      . Despite the fact that we have applied Florida law in resolving this appeal, we are confident that the outcome would be the same if New York law were applied. As expressed in the leading case of McMains v. McMains, 15 N.Y.2d 283, 258 N.Y.S.2d 93, 206 N.E.2d 185 (1965), an ex-wife seeking such an amendment may do so only
      ... when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge ...

      15 N.Y.2d at 285, 258 N.Y.S.2d at 95, 206 N.E.2d at 186. (e. s.) No such claim has been raised in the present case.
      For a recent application of the McMains doctrine by this court, see Hirsch v. Hirsch, 369 So.2d 407 (Fla. 3d DCA 1980).


text:
    SOUTHWESTERN INSURANCE COMPANY, Bob Mulgrew and Dan Cowart, d/b/a Golfland Amusement Park, Appellants, v. Raymond STANTON, a minor, by and through his mother and next friend, Michelle Apley and Michelle Apley, individually, Appellees.
    No. 79-1638.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellants.
    Greene & Cooper and Joan M. Bolotin, Preddy, Kutner & Hardy, Miami, for appel-lees.
    Before HUBBART, C. J., and HENDRY and PEARSON, DANIEL, JJ.
   HENDRY, Judge.

This is an appeal by defendants below from an order of the Circuit Court of Dade County, Florida granting plaintiffs a new trial. Plaintiffs have cross-appealed.

The appeals arise out of an action for damages brought by the minor plaintiff and his mother against the defendants charging the individual defendants with negligence that resulted in injuries to the minor, who was operating a dune cycle (having purchased a ticket for such purpose from the operators of the amusement park). The cause went to trial on the issues of the alleged negligence of the individual defendants and the comparative negligence of the minor plaintiff. Each of the parties denied the negligence charged. At trial, a special interrogatories verdict was submitted to the jury. The defendants were found by the jury to be twenty-five per cent negligent and the minor plaintiff to be seventy-five per cent negligent. They found the minor’s damages to be $25,000 and the mother’s damages to be $7,500. The trial judge entered final judgment for the minor in the sum of $6,250 (being twenty-five percent of the $25,000 damage award to him), and the sum of $1,875 for the mother (twenty-five per cent of the damages awarded her). The plaintiffs filed a motion for new trial on the grounds that the trial court failed to instruct the jury that they were not to make any reduction in the damage award based on the amount of negligence attributable to the minor. The court granted the motion for new trial and entered the following order:

THIS CAUSE came on to be heard upon the plaintiffs’ Motion for New Trial and the Court having heard argument by counsel and being duly advised in the premises, it is:
ORDERED & ADJUDGED that the plaintiffs’ Motion for New Trial be and the same is hereby granted on the grounds that the Court failed to instruct the jury that in determining the total amount of damages sustained by the plaintiff, no reduction in same should be made because of the negligence, if any, of RAYMOND STANTON. As further grounds for granting the Motion for New Trial, the Court deleted the following language from the “Verdict Special Interrogatories” submitted by the plaintiffs as identified as Exhibit “A” attached to the Motion for New Trial:
In determining the total amount of damages, do not make any reduction because of the negligence, if any, of RAYMOND STANTON. If you have found RAYMOND STANTON negligent in any degree, the court in entering judgment will reduce RAYMOND STANTON’s total amount of damages (100%) by the percentage of negligence which you found is chargeable to RAYMOND STANTON.
DONE & ORDERED in Chambers at Miami, Dade County, Florida, this 7 day of August, 1979.
Thomas A. Testa
JUDGE, CIRCUIT COURT

It is from this order granting a new trial to plaintiffs that defendants have appealed.

Defendants contend that the trial court erroneously granted plaintiffs’ Motion for New Trial. They argue that the mere failure of the trial court to give instructions included in the Standard Jury Instructions does not amount to reversible error: That the trial judge had correctly determined at the charge conference that the “no reduction” charge was superfluous (therefore, a new trial should not have been granted for the failure to give an instruction which was unnecessary, especially when the instructions that were given fairly presented the law to the jury); that plaintiffs may not complain, since that portion of the charge was given at their request. Defendants further argue that, since the trial judge specifically asked the jury whether the amounts that they had calculated were the total amounts to be awarded, their affirmative answer showed that the jury was not misled by the instructions as a whole. Additionally, it is argued that plaintiffs, by failing to object to the proposed instructions at the charge conference, waived any error in the verdict’s form. Lastly, defendants argue that even if there was error in the charge to the jury or in the verdict form warranting a new trial, the new trial should be limited to the question of damages, and that the previously determined comparative negligence found by the jury should then be applied to the new total.

We have carefully considered defendants’ argument and the cases cited in support of a reversal of the trial court’s order granting a new trial and have concluded that it was not reversible error for the trial court to grant the new trial. However, the court erred (1) in failing to limit the issues upon retrial to damages only, and (2) in omitting from the order for new trial the proviso that the total damages found for the minor plaintiff upon retrial would be reduced by the amount of the minor plaintiff’s previously determined comparative negligence of seventy-five per cent. See Adkins v. Seaboard Coast Line R.R., 351 So.2d 1088 (Fla. 2d DCA 1977).

Other points on appeal and cross-appeal have been considered and found to be without merit. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975); Bickford v. Wall, 371 So.2d 172 (Fla. 3d DCA 1979), cert. denied 381 So.2d 764 (Fla.1980).

Accordingly, the order granting plaintiffs’ Motion for New Trial is affirmed with directions that the new trial be limited to the issue of damages and that the total damages found on the second trial be reduced by the amount of the minor plaintiff’s previously determined comparative negligence of seventy-five per cent.

Affirmed in part and reversed in part, with directions.

      . An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that otherwise they would not have reached. Allstate Insurance Co. v. Vanater, 297 So.2d 293 (Fla.1974).


author: SCHWARTZ, Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Alfred GUSTINGER, Jr. and Kenneth Ryskamp, Appellees.
    No. 80-725.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1980.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellant.
    Alfred Gustinger, Jr., Goodwin, Ryskamp, Welcher, Carrier & Donoff, Miami, for ap-pellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On January 6, 1978, an industrial claims judge entered an order awarding the claimant’s attorney, Alfred Gustinger, a $20,000 fee in the workmen's compensation proceeding of Jackson v. Raystan Theatres and Consolidated Mutual Insurance Company. The employer and carrier appealed to the full Industrial Relations Commission, which, on November 7, 1978, both affirmed the order below and granted Kenneth Ryskamp an additional $250.00 in appellate attorney’s fees. On December 1, 1978, the Insurance Department was appointed as Ancillary Receiver of the insurer, Consolidated Mutual, which had become insolvent. In 1979, Gus-tinger and Ryskamp filed the present proceeding in the Dade County Circuit Court, seeking a rule nisi for the enforcement of the fee awards against Raystan, Consolidated, and the Florida Insurance Guaranty Association (FIGA), as Consolidated’s statutory successor. The trial judge entered final judgment for the plaintiffs against FIGA for the amounts of the fees plus interest from the dates of the respective awards. In addition, $4,800 in attorney’s fees were assessed for the prosecution of the rule nisi proceeding itself. FIGA appeals. With the exception of the interest allowance, we affirm.

FIGA’s initial contention is that the petition for a rule nisi could not properly have been maintained against it, since it was not a named party in the workmen’s compensation proceedings. We disagree. The rule nisi action authorized by Section 440.24(1), Florida Statutes (1977) was specifically designed to secure the enforcement of duly entered compensation orders against employers and carriers such as Consolidated. Under Section 631.57(l)(b), Florida Statutes (1979), FIGA is subject to all of the “rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” It is obvious therefore that it was amenable, as Consolidated’s replacement, to the petition for a rule nisi.

We next hold, despite its argument to the contrary, that the attorney’s fee awards in the compensation proceedings are “covered claims” for which FIGA is responsible. Section 631.54(4), Florida Statutes (1979) provides:

(4) ‘Covered claim’ means an unpaid claim ... which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies....

Since the workmen’s compensation policy issued by Consolidated to Raystan Theatres obviously insured against the employer’s responsibility to pay the claimant’s attorney’s fees under the then-existing provisions of the workmen’s compensation law the statutory definition plainly applies.

The appellant’s challenge to the $4,800 award for the rule nisi services is similarly ill-founded. As the court held in Zinke-Smith, Inc. v. Florida Ins. Guaranty Ass’n, Inc., 304 So.2d 507, 510 (Fla.4th DCA 1974), cert. denied, 315 So.2d 469 (Fla.1975), fees for the prosecution of a “covered claim” against FIGA are ordinarily recoverable pursuant to the general “insurance-attorney’s fee” statute, Section 627.428, Florida Statutes (1979). FIGA invokes, however, Section 631.70, Florida Statutes (1979), which was enacted in 1977, apparently in response to Zinke-Smith, and which provides:

The provisions of s. 627.428 providing for an attorney’s fee shall not be applicable to any claim presented to the association under the provisions of this part, except when the association denies by affirmative action, other than delay, a covered claim or portion thereof.

In the rule nisi proceeding, FIGA’s answer, in a self-styled “affirmative defense,” specifically claimed “[t]hat any claim for attorneys’ fees against Consolidated . .. does not come within the definition of ‘covered claim’ as used in the Act.” In our view, FIGA’s presentation of this contention in this manner constituted the “deni[al] by affirmative action, other than delay, [of] a covered claim,” within the meaning of the exception provided by Sec. 631.70. Furthermore, the trial court was authorized to assess fees in the rule nisi proceeding pursuant to Section 440.34(1), Fla.Stat. (1977). Steele v. A.D.H. Building Contractors, Inc., 196 So.2d 430 (Fla.1967); McCormick v. Messink 208 So.2d 113 (Fla.2d DCA 1968), cert. denied, 218 So.2d 174 (Fla.1968). FIGA’s liability under that statute is unaffected by Sec. 631.70.

Sec. 631.57(l)(b), Fla.Stat. (1979), clearly states that “[i]n no event shall the association be liable for any penalties or interest.” Applying this unambiguous statutory language, see, Fernandez v. Florida Insurance Guaranty Association, Inc., 383 So.2d 974 (Fla.3d DCA 1980), we strike the allowance of interest on the compensation fee awards from the dates of their entry to the date of the final judgment, March 26, 1980. Otherwise, the judgment under review is affirmed.

Affirmed in part, reversed in part.

      . § 440.34, Fla.Stat. (1977). Fee awards are not “penalties,” such as those provided in Section 440.20(5), (6), Florida Statutes (1977), for which FIGA would not have been liable under Sec. 631.57(l)(b), Fla.Stat. (1979), discussed infra.

      . FIGA’s non-liability for interest applies, under Sec. 631.57(l)(b), Fla.Stat. (1979), only with respect to “covered claims.” FIGA remains responsible for the payment of lawful interest on the final judgment itself from the date of entry. § 55.03, Fla.Stat. (1979).

      . Although the issue clearly should have been raised in a motion to review under Fla.R.App.P. 9.310(f), FIGA claims as a point on appeal that the trial court erroneously required it to post a supersedeas bond to stay execution on the judgment below. It contends that it is a “public body” which is entitled to an automatic stay under Fla.R.App.P. 9.310(b)(2). This contention is without merit. Kuvin, Klingensmith & Lewis, P.A. v. Florida Insurance Guaranty Association, Inc., 371 So.2d 214 (Fla.3d DCA1979).


text:
    DEPARTMENT OF REVENUE, Appellant, v. WIDELL ASSOCIATES, INC., Appellee.
    No. PP-124.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Jim Smith, Atty. Gen., Linda C. Procta, Asst. Atty. Gen., Tallahassee, for appellant.
    Howard P. Ross of Battaglia, Ross, Forel-izzo, Hastings, Dicus & Campbell, St. Pe-tersburg, for appellee.
   PER CURIAM.

AFFIRMED. Department of Revenue v. Renel Construction, Inc., 388 So.2d 1079 (Fla. 1st DCA 1980).

ERVIN, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: LILES, WOODIE A., Associate Judge (Retired). BOOTH, Judge,

text:
    Paul BELLAVANCE, a minor, by and through his father and next friend, Norman Bellavance, and Norman Bellavance, individually, Appellants, v. The STATE of Florida, d/b/a the Northeast Florida State Hospital, Appellee.
    No. SS-98.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Rehearing Denied Dec. 15, 1980.

      Mary Friedman and Bill Hoppe of Colson & Hicks, Miami, for appellants.
    Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

Plaintiffs, Paul and Norman Bellavance, appeal from a final summary judgment entered for the defendant, State of Florida, d/b/a Northeast Florida State Hospital (State). The gravamen of Paul Bella-vance’s claim is that, “the defendant, State of Florida, acting by and through its agent, Dr. Roberto Simon, negligently released patient Gary Riccardelli before he was sufficiently treated and cured, ” and that as a result of such negligence, Paul was injured. Norman Bellavance’s claim is that, as a result of the injuries sustained by his son due to the State’s negligence in prematurely releasing Riccardelli, he has incurred substantial medical expenses and will lose the services of his minor son. The patient, Gary Riccardelli, had been involuntarily committed to the Northeast Florida State Hospital under The Baker Act, Section 394.-451 et seq., Florida Statutes, immediately following his release from prison. The trial court ruled that the act complained of falls within the area of discretion for which sovereign immunity remains and so entered the subject final summary judgment. The sufficiency of the allegations of negligence and causation are not before us. We therefore assume but do not decide that the complaint states a cause of action.

In the recent landmark case, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), the Florida Supreme Court redefined the waiver of sovereign immunity under Section 768.28, Florida Statutes. As a tool in identifying those certain “discretionary” governmental functions which remain immune from tort liability, the Court cited approvingly the case-by-case analysis set forth in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), which distinguishes between the “planning” and “operational” levels of decision-making by government agencies. In pursuance of this case-by-case method of proceeding, the Court also commended the utilization of the following four-pronged preliminary test set forth in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965):

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved. Id., at 445.

Commercial Carrier Corp. v. Indian River County, at 1019. Application of the above test to the instant situation quickly reveals that questions (1) and (4) can be answered in the affirmative. Undeniably, the act of releasing a mental patient involves a basic governmental policy as set forth in The Baker Act, i. e., to seek the least restrictive means of intervention and treatment for the particular mental patient. Sections 394.453 and 394.459(2)(b), Florida Statutes. It is equally clear that Section 394.469(1) and (2), Florida Statutes, provides, within certain limitations, the requisite statutory authority for the Northeast Florida State Hospital to release a mentally ill patient.

We are unable, however, to answer questions (2) and (3) in the affirmative. Paraphrased to the instant situation, we must ask: Is the act of releasing Riccardelli essential to the realization or accomplishment of The Baker Act policy of insuring the least restrictive means of intervention and treatment for mentally ill patients, or is it one which would not change the course or direction of that policy? We think that it is the latter, for we are hard pressed to see how the act of releasing, or for that matter not releasing, Riccardelli would materially affect the ends and purposes of The Baker Act. Further, it is a specific individual act which simply does not rise to the character of a “basic policy evaluation” as suggested by question (3). In Johnson v. State, supra, the California Supreme Court opined:

“. .. although a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.” Id., 73 Cal.Rptr., at 250, 447 P.2d, at 362.

Similarly, while the State’s standards for releasing mental patients may be discretionary and thus immune from review, the subsequent ministerial action of releasing Riccardelli pursuant to those standards does not achieve the status of a “basic policy evaluation.” Accordingly, a further inquiry must be made into additional factors and considerations: i. e., “the importance to the public of the function involved, the extent to which government’s liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages.” Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 230, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467 (1961), cited approvingly in Johnson v. State, supra and Commercial Carrier Corp. v. Indian River County, supra. An additional consideration is also suggested by Johnson v. State :

“. . . to be entitled to immunity, the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.” Ibid., Footnote 8, pp. 794-795, 73 Cal.Rptr. p. 249, 447 P.2d p. 361.

There is a vital public interest in securing the earliest possible release and subsequent return to society of persons afflicted with mental illness, and it may well be argued that to subject the State to liability for the negligent release of these people will have a chilling effect upon the administration of programs such as that offered by the Northeast Florida State Hospital. However, this potential chilling effect is significantly mitigated by the provisions of Section 768.28(9):

“No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for a final judgment which has been rendered against him for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” (Emphasis supplied)

Clearly, it is only under a most exacting standard that State employees may be subjected to ultimate personal liability.

We also doubt that the potential liability of the State itself will be a significant inhibitor to the exercise of professional judgment by the personnel involved. Indeed, some inhibiting effect may well be healthy, for it should not be forgotten that the State’s employees serve the needs of society as a whole as well as the needs of individual persons. Further, we cannot envisage any remedy, other than a tort suit for damages, to which the Bellavances can resort.

The sparse record before this Court also indicates that Riccardelli had a long and troubled history of fights and other violent acts while in prison. During the approximately two months of his stay at the Northeast Florida State Hospital, he attempted to escape on two occasions. Further, he was released from the Hospital on December 25, 1976, this despite being subject to “homicidal precautions” by the staff as recently as December 10, 1976. These and other factors could reasonably suggest to the judge and jury that the State, by and through its employees, did not render a considered decision in releasing Riccardelli. The State may yet show that it did do so, and the record itself hints of factors in explanation or mitigation of the above. However, such a showing was not made and could not have been made by the State at the summary judgment stage of the trial court’s proceedings. Elton v. County of Orange, 3 Cal.App.3d 1053, 84 Cal.Rptr. 27, 31 (1970). On the contrary, such matters are factual issues more suitably governed by appropriate jury instructions than by standards for summary judgment.

In sum, the equities of the instant factual situation do not present a compelling justification for the invocation of sovereign immunity. The specific, individual act of releasing Riccardelli simply does not rise to the level of “basic policy decisions” which call for judicial restraint. Further, the State has not demonstrated that the personnel involved, after consciously balancing risks and advantages, made a considered decision in releasing Riccardelli. Therefore, we think that this cause must be heard on its merits.

REVERSED AND REMANDED for proceedings not inconsistent with this opinion.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., concurs in part, dissents in part with opinion.

BOOTH, Judge,

concurring in part, dissenting in part:

I agree with the majority that questions (1) and (4) of the sovereign immunity test of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), as adopted by Commercial Carrier Corporation v. Indian River Company, 371 So.2d 1010 (Fla.1979), is satisfied under the facts here. I do not agree that questions (2) and (3) are not also satisfied. The release of a mental patient is an act requiring both expertise and the exercise of discretion. The act itself, and its accomplishment as a matter of expertise and judgment, is essential to the realization of the basic policy set forth in the Baker Act.

The Evangelical case itself supports this interpretation of the rule. In that case, the plaintiff sought recovery for damages by fires set by an escaped juvenile, contending that the State was negligent, inter alia, in (1) maintaining the “open program” at the Juvenile Detention Center, and (2) in assigning the boy in question to the open program. In reversing for dismissal of the complaint, the Supreme Court of Washington held (407 P.2d at 446):

[T]he establishment and maintenance of an overall and individual training and security program within a correctional facility .. . consistent with the adopted policy and objectives of the state’s delinquent youth program, necessarily require that a proper balance be struck between therapy and security. To this end, it calls into play the exercise of executive expertise, evaluation and judgment in an area involving many variable human, emotional, and psychological factors and about which widely divergent opinions can and do exist. The decisions- required are not unlike those called for in the legislative and judicial process of government. Indeed, we have held that an administrative decision to parole an inmate from a mental hospital embraces the exercise of discretion which is quasi-judicial in character. Emery v. Littlejohn, 83 Wash. 334, 145 P. 423 (1915). To now hold, under existing legislation, that the exercise of the executive and administrative discretion involved in plaintiffs’ first two contentions is subject to regulation and control by the media of damage actions would do naught but stifle the basic government process and policy.
We conclude that, as applied to these contentions of plaintiffs, the four questions heretofore posed clearly and unequivocally demand affirmative answers, (e. s.)

The court in Evangelical, supra, cites with approval the holding in Emery v. Littlejohn, 83 Wash. 334, 145 P. 423, 426 (1915), wherein the court held:

We are of the opinion that the power of absolute discharge of [mental] patients from the hospital includes the power to parole or conditionally discharge patients therefrom, and that all acts of the superintendent under this power involve the exercise of discretion on his part of a quasi judicial character.
The acts of Dr. Calhoun, here complained of, being official, and calling for the exercise of his discretion, the law seems to be settled beyond controversy that he cannot be called to account for any consequences flowing therefrom, in a civil action for damages instituted by a person claiming to be injured as the result of such discretionary action in the absence of malicious or corrupt action.

The determination that a mental patient is to be released is the ultimate judgmental function of the agency charged with that responsibility, for which sovereign immunity applies.

The judgment below should be affirmed in its entirety.

      . This holding in Johnson v. State was predicated upon an express statutory exception in the California statute regarding discretionary functions. Cal.Gov.Code, § 820.2. Inasmuch as the Florida Supreme Court has grafted such an exception into Section 768.28 [Commercial Carrier Corp. v. Indian River County, at 1020, 1022], we think the cited passage instructive to the instant case.

      . The other two contentions of the plaintiff in the Evangelical case were that the State was negligent in assigning the boy to the boiler room detail in the institution and in failing to notify local law enforcement agencies of his escape. The court found that these were “operational, ministerial or housekeeping functions,” for which suit would lie, but concluded that the record failed to establish negligence.


text:
    Keith E. MOBLEY, Appellant, v. FULFORD VAN & STORAGE and Monarch Insurance Company, Appellees.
    No. SS-287.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Rehearing Denied Dec. 19, 1980.

      Steven C. Burrage and Robert D. Melton, Orlando, for appellant.
    Janet L. Brown, of Haas, Boehm & Brown, Orlando, for appellees.
   PER CURIAM.

In this worker’s compensation appeal we affirm the deputy commissioner's ruling „denying appellant’s objection to surveillance films offered into evidence by the employer/carrier. Rules 10(a)(4) and (5), Florida Worker's Compensation Rules of Procedure (temporary) provide that impeachment and rebuttal exhibits and witnesses need not be revealed at the pretrial conference. Further, the deputy commissioner’s refusal to order disclosure or production will not be reversed absent a showing of abuse of discretion. Melton v. Bowen Roofing Company, IRC Order 2-3376 (March 15, 1978). Appellee points out that the surveillance witnesses were known to the claimant’s counsel more than a month prior to the final hearing, but no effort was made to elicit information from them by means of depositions.

We reverse the order of the deputy commissioner for failure to set forth findings upon which he based denial of the benefits sought by the claimant. Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976); Pierce v. Piper Aircraft Corporation, 279 So.2d 281 (Fla.1973); and Westberry v. Copeland Sausage Company et al., 389 So.2d 1214 (Fla. 1st DCA 1980), Case No. SS-356, Opinion filed October 27, 1980.

Here the order contains little more than could be gleaned from a cursory glance at the index to the record on appeal. We agree with appellees’ assertion that it is not necessary for the deputy commissioner to make a belabored finding of fact on each and every potential question which may have arisen in the course of the claim and compensation hearing. The order here for review, however, contains no findings whatever with respect to the nature of the accident, the injuries sustained, the treatment provided in the past or presently being provided, and no indication whatever concerning the past or present complaints or disabilities for which the claimant is seeking benefits. We strongly disagree with appel-lees’ assertion that it is the function of this court, when faced with an order of this kind, to “search the record on appeal for any support of the compensation order, and if such is found, the Order must be affirmed.” See Armour & Company v. Chatman, IRC Order 2-3212 (August 4, 1977). We further observe, parenthetically, that it is the function of the order to provide at least an outline of the essential facts pointing toward the decision ultimately reached by the deputy commissioner; and it is the function of appellate counsel to refer the court, by appropriate references to the specific pages of the testimony or other documents in the record, to the evidence which either supports or fails to support the essential facts upon which the decision is based.

REVERSED AND REMANDED for the entry of an order as directed by this opinion.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

      . Rule 8(b), Florida Workers’ Compensation Rules of Procedure, as amended by order of the Supreme Court of Florida, October 23, 1980:
      (b) The order of the Deputy shall set forth findings of fact, conclusions of law and the Deputy’s determination of the claim or other ruling. The order shall be signed by the Deputy and shall include a certificate of mailing thereon, (emphasis supplied)


author: LARRY G. SMITH, Judge.

text:
    SINGER HOUSING COMPANY et al., Appellants, v. James WREN and Sarah Wren, Appellees. James WREN and Sarah Wren, Appellants, v. SINGER HOUSING COMPANY et al., Appellees.
    Nos. TT-70, TT-183.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.

      Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, for appellants (TT-70).
    Robert J. Mayes and Charles J. Kahn, Jr. of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, and H. Edward Moore, Jr. of Sherrill, Moore & Hill, Pensacola, for appellees (TT-70).
    Charles J. Kahn, Jr. and Robert J. Mayes of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellants (TT-188).
    H. Edward Moore, Jr. of Sherrill, Moore & Hill, and Donald H. Partington of Clark, Partington, Hart & Hart, Pensacola, for appellees (TT-183).
   LARRY G. SMITH, Judge.

This is a consolidated appeal from a judgment entered pursuant to a jury verdict which awarded plaintiffs, James and Sarah Wren, $350,000.00 in damages against Singer Housing Company (Singer). James Wren was injured when he fell into a subsurface hole while walking near the property line of his residence. Wren’s position at trial was that either Singer which constructed his home, or Gatwood Builders, Inc., (Gatwood) which constructed his neighbor’s home, was responsible for the dangerous condition on his property because one or the other of them, while building the respective homes, pushed or buried debris in a hole and covered it up, creating a subsurface void when the material decayed and settled over a period of time. Singer argues on appeal that the verdict against it is against the manifest weight of the evidence and that its motion for directed verdict should have been granted. Singer further urges that the trial court erred in admitting testimony concerning Singer’s other acts of burying debris in the southwest comer of the lot on which Wren was injured and in the subdivision in which the Wren home is located. In their appeal, the Wrens contend that if this court does not affirm the trial court, they are entitled to a new trial against Gatwood as well as Singer. Gat-wood cross-appeals arguing that it was entitled to a directed verdict. We affirm.

Although we might have reached a different result than the jury had we been sitting as triers of the facts, as an appellate court our authority is restricted to determination of whether the verdict against Singer is supported by competent substantial evidence. There is sufficient evidence in the record that Singer buried or pushed debris into the low area on the property line and covered it with earth. Consequently we may not disturb the jury’s determination.

In regard to Singer’s complaint about the admission of evidence concerning Singer’s past acts of burying debris, we find this evidence concerned past trade or business practices rather than past acts of negligence and was therefore admissible. Spartan Grain and Mill Company v. Ayers, 517 F.2d 214 (5th Cir. 1975). In Spartan, a feed seller sued some egg producers to recover unpaid balances. Under the agreement between the seller and the producers, Spartan (the seller) was also bound to buy all of the producers’ eggs. At the trial, the producers tried to show that the dispute was based largely on improper charge-backs to the producers’ accounts when many eggs failed to hatch. The charge-backs were improper, said the producers, since the low hatch rate was caused by Spartan’s mishandling of the eggs. The producers tried to prove mishandling of the eggs by introducing evidence of Spartan’s general pickup practices. Some of this evidence did not relate to the producers by name, but related to other pickups. The Fifth Circuit found that the trial court improperly excluded the evidence and interpreted the rule as follows:

Evidence of a trade or business custom is permissible for the purpose of showing that the custom was followed in a particular instance; likewise, evidence of other transactions or occurrences is admissible if relevant and not too likely to confuse the jury or prejudice the opposing party.
* * * * * *
The crucial factor mandating admissibility of the evidence in question is that it was not introduced to show that Spartan had acted negligently on other occasions, but rather to show that Spartan conducted this aspect of its business in a certain routine fashion. Presented with this evidence, the jury could properly infer that Spartan’s procedures had been similar on the occasions at issue, and then decide whether or not Spartan was at fault. (517 F.2d at 219)

In the trial below, there was testimony from two Singer employees concerning Singer’s past practice of burying construction debris on home construction sites. There was testimony from Wren’s neighbor that she saw Singer bury construction debris in the southwest corner of the Wren lot. We find this testimony is similar in nature to the testimony held admissible in Spartan and was not introduced to show that Singer acted negligently on other occasions.

We find further support for affirmance in the rule announced in Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 393 N.Y. S.2d 341, 361 N.E.2d 991 (1977), which held that if an auto mechanic had habitually or regularly used an immersion coil to heat water in which a refrigerant container was placed, evidence of that habit or regular usage was admissible to prove that he followed this procedure on the day of the explosion. The court reasoned as follows:

At least, as in this kind of case, where the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion (see McCormick, Evidence [2d ed.], § 195, advocating an even more expansive approach; see, also, 1 Wigmore, Evidence [3d ed.], § 97). Far less likely to vary with the attendant circumstances, such repetitive conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks. On no view, under traditional analysis, can conduct involving not only oneself but particularly other persons or independently controlled instrumentalities produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative. (41 N.Y.2d 386, 393 N.Y.S.2d at 345-346, 361 N.E.2d at 995, 996.)

We have considered the remaining points raised and find them without merit. Accordingly, the judgment is AFFIRMED.

ERVIN and SHIVERS, JJ., concur.