author: DANIEL S. PEARSON, Judge.

text:
    R. B. S., a juvenile, Petitioner, v. Doris CAPRI, Director of Dade County Juvenile Detention Center, Respondent.
    No. 80-817
    District Court of Appeal of Florida, Third District.
    May 27, 1980.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, Miami, for petitioner.
    Janet Reno, State’s Atty. and Diane Kuker, Asst. State’s Atty., Miami, and Bruce H. Lehr, Legal Intern, for respondent.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

On April 24, 1980, this court, upon hearing argument on the juvenile’s petition for writ of habeas corpus and the State’s response, granted the writ and directed the respondent to forthwith release the petitioner from custody. The petitioner’s release has already been effected by the granting of the writ of habeas corpus and no further can be accomplished for him by our memorializing the reasons for our action. We are, however, sufficiently disturbed by the trial court’s disregard of the plain dictates of the Florida Juvenile Justice Act and sufficiently convinced that this disregard is capable of repetition that we deem this opinion necessary.

The petitioner (hereinafter the child) was charged with manslaughter and taken into custody at 2:40 p. m. on Monday, March 24, 1980. Two days later, on March 26, 1980, the State filed a petition for delinquency, and the child was, for the first time, brought before the court. At the conclusion of this hearing, the family division judge entered a written order that the child “shall remain detained as previously ordered.” There was, however, no previous court order respecting detention.

Presumably, one of the purposes of convening on March 26 was to conduct the detention hearing mandated by Section 39.-032(2), Florida Statutes (1979):

“. . .A child who is charged with a violation of law and is detained under this subsection shall be given a detention hearing within 48 hours of his being taken into custody, excluding Sundays and legal holidays, to determine the need for continued detention. The circuit court . shall hold the detention hearing. . . . ” (emphasis supplied).

The requirements of the statute are not satisfied, however, by the mere holding of a hearing. Section 39.032(5)(a) provides:

“No child shall be held in detention or shelter care longer than 48 hours, excluding Sundays or legal holidays, unless an order is entered by the court after a detention hearing finding that detention care or a crisis home is required based on the criteria in subsection (2). The order shall state the reasons for such findings of the court. The order shall be reviewable by appeal pursuant to s. 39.14 and the Florida Appellate Rules.”

The criteria referred to in the above-quoted section are:

“Unless ordered by the court, a child taken into custody shall not be placed or retained in detention care prior to the court’s disposition unless detention or a crisis home is required:
“(a) To protect the person or property of others or of the child;
“(b) Because the child has no parent, guardian, responsible adult relative, or other adult approved by the court able to provide supervision and care for him. If a child is to be detained pursuant to this paragraph alone, a crisis home only may be used;
“(c) To secure his presence at the next hearing;
“(d) Because the child has been twice previously adjudicated to have committed a delinquent act and has been charged with a third subsequent delinquent act which would constitute a felony if the child were an adult; or
“(e) To hold for another jurisdiction a delinquent child escapee or an absconder from probation, a community control program, or parole supervision of a child who is wanted by another jurisdiction for an offense which, if committed by an adult, would be a violation of law”.

[§ 39.032(2), Fla.Stat. (1979)].

As of 2:40 p. m. on March 26, 1980, no order in compliance with Section 39.-032(5)(a) having been entered, the child was entitled to be released from custody. His counsel, however, sought no review and his right to release remained inchoate.

On the morning of April 9, the child’s next appearance in court, the State’s request that the court waive juvenile jurisdiction was denied. That same afternoon, after sixteen days of detention, appointed counsel moved for the child’s release from detention. It is apparent from the transcript of this hearing that all concerned overlooked that as of the time of this hearing the child had already been illegally detained for fourteen days. But since he was still detained, and since the proscription contained in Section 39.032(5)(a) is not self-executing, the court would have been acting within its authority on April 9 to enter a valid detention order complying with Section 39.032(5)(a) and thereby render moot, for habeas corpus purposes, the prior illegal detention. This the court did not do. Instead the court continued the child’s detention, ordering that he be further held in “non-secure.” The following colloquy contains the only reason given by the court for its ruling:

“MR. RYAN [prosecutor]: We have no objection to the straight release to the parent. Decision was made not to bind him over by Judge Perry.
“THE COURT: It is a serious charge.
“MS. COHEN [public defender]: Serious charge, Your Honor, but this is a really exceptional young man.
“THE COURT: Exceptional young man charged with manslaughter.
“MS. COHEN: I don’t—
“THE COURT: Somebody died because of this.”

On the following day, April 10, the public defender once again moved for the release of the child. The court’s response was the same:

“THE COURT: I think you should make this motion again on Monday when the 21 days are over. I am not going to release at this time. This is a very serious case. Somebody was killed in this situation. I am just not going to release him until the 21 days are over. At that time if you want to make a motion then you make your motion. I cannot release him at this time — I will not.”

The court’s reference to 21 days was a reference to Section 39.032(5)(c), Florida Statutes (1979), which provides:

“No child shall be held in detention care under a special detention order for more than 21 days unless an adjudicatory hearing for the case has been commenced by the court.”

Of course, the right to hold a child in detention for 21 days presupposes a valid detention order ab initio. None existed.

On April 14, 1980, “the 21 days were over”; however, the illegal detention of the child was not. On that date the State moved for a continuance of the adjudicatory hearing and for the continued detention of the child. The litany was repeated:

“. . . the only thing I know is that the State has come up here and told me that he killed somebody. That is what I know at this time, and they are charging him with that, and you are asking me to release him at this time. It is a very serious charge, it is a manslaughter case, and I don’t think he should be out, to tell you the truth, on a manslaughter case.”

The court set over the adjudicatory hearing to May 1,1980, and continued the child’s detention. With that, the child sought relief in this court.

The State’s response to the petition for writ of habeas corpus was that on April 9, 1980, the detention of the child was legalized and the statutory criteria met when the family division judge stated in open court that the basis for his decision not to release the child was because the charge was manslaughter. We reject this argument for two reasons.

First, Section 39.032(5)(a) mandates that the order entered “state the reasons for such findings of the court.” The written order entered by the trial judge contained neither a finding nor reasons. Where a statute requires a written order giving findings and reasons, the transcript of the proceedings upon which the order was based cannot act as a substitute.

The requirement of the written order is consistently found in rules and statutes pertaining to bail. See Fla.R.Crim.P. 3.691(b); 18 U.S.C. § 3146(d) (1966); Fed.R. App.P. 9(a). In matters respecting the right to be free from detention, the written order is essential:

“Even prior to the enactment of the Bail Reform Act, 18 U.S.C. § 3141 et seq. (Supp. Ill, 1965-1967), and the adoption of the Federal Rules of Appellate Procedure, which went into effect on July 1, 1968, it had been clearly enunciated that a District Judge in denying a motion for release pending appeal should state in writing his reasons for such an action. This requirement has now been explicitly reiterated by the Appellate Rules. Fed. R.App.P. 9. In both pretrial and postcon-viction requests for bail, Rule 9 requires that, upon a denial of release or the imposition of conditions of release, the District Court ‘shall state in writing the reasons for the action taken.’ The Advisory Committee’s Note to Rule 9 makes it clear that this requirement is no minor technicality.
“The District Judge’s reasoning must be delineated both out of fairness to the appellant and as an aid to this court in its role in bail administration. Application for release must generally first be made to the District Court, and we ordinarily give deference to the District Judge’s decision. If no reason for that action is given, it ‘cannot be accorded the weight it would otherwise merit.’ ” Weaver v. United States, 405 F.2d 353, 354 (D.C. Cir. 1968).

Accord, United States v. Thompson, 452 F.2d 1333 (D.C. Cir. 1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972); see also United States v. Briggs, 476 F.2d 947 (5th Cir. 1973), and United States v. Briggs, 472 F.2d 1229 (5th Cir. 1973). The right to an effective appeal from an adverse bail order includes the right to know what one is appealing from. McCormack v. State, 338 So.2d 208 (Fla. 4th DCA 1975); United State v. Thompson, supra. It is only from the written order that an appeal can be taken. Sparks v. State, 262 So.2d 251 (Fla. 4th DCA 1972). The purpose of the requirement that the trial court clearly and categorically state reasons for denying bail is so that a reviewing court may be fully advised regarding the basis for the trial court’s action. United States v. Manarite, 430 F.2d 656 (2d Cir. 1970). While one court has held that an opinion setting forth findings and reasons dictated in the record is sufficient compliance with the written order requirement, it cautioned that an extensive colloquy in the transcript which contained neither definite findings nor reasons was not sufficient. See United States v. Manarite, supra; see also United States v. Fields, 466 F.2d 119 (2d Cir. 1972). It is not the function of an appellate court to cull the underlying record in an effort to locate findings and underlying reasons which would support the order. The statute should be complied with in the future.

Since the entire record is before us and the trial court so clearly stated in the record his reason for denial of release from detention, we are prepared to reject the State’s response for a second reason. The stated basis for the court’s denial of release was the fact that the child was accused of manslaughter. That stated reason does not constitute a finding meeting any of the criteria for detention set forth in Section 39.032(2). Inasmuch as the seriousness and nature of the offense are specified criteria in other sections of Chapter 39, see, e. g., Sections 39.09(2)(c), 39.09(3)(d), and 39.-lll(6)(c), we are constrained to conclude that the Legislature deliberately omitted this factor as one of the criteria to justify detention of a child.

One of the stated purposes of the Florida Juvenile Justice Act is:

“To preserve and strengthen the child’s family ties whenever possible, removing him from the custody of his parents only when his welfare or the safety and protection of the public cannot be adequately safeguarded without such removal; . . ” § 39.001(2)(c), Fla.Stat. (1979).

That purpose was not served in the present case.

For the foregoing reasons, we have granted the writ of habeas corpus.

      . One week earlier, upon receipt of the petition, we ordered the provisional release of the petitioner pending the State’s response and the argument to be held.

      . Chapter 39, Florida Statutes (1979).

      . In C. L. B. v. Jones, 381 So.2d 1178 (Fla. 1st DCA 1980), the court, in the analogous situation of an attack upon a post-commitment detention of a delinquent child under Section 959.15, Florida Statutes (1979), concluded that although the issues were then moot, an opinion dealing with the merits was warranted, since at stake was the fundamental right to liberty and procedures which were subject to repetition.

      . The written order reflecting the results of the child’s first appearance on March 26 is a printed form obviously designed to expedite the work of the trial judge. Insofar as is pertinent here, it contains two possible orders respecting custody, the entry of either to be signified by a check mark. The first alternative is “that the child is released” pending further hearing. The second alternative, checked in the present case by the family division judge, is that the child “shall remain detained as previously ordered pending further order of the court . .
      As will be seen, infra, the use of this form order is inappropriate unless the findings supporting detention, and the reasons for such findings, required by Section 39.-032(5)(a), Florida Statutes, have in fact previously been made by a court. While Section 39.032(5)(b) vests the intake officer, in the absence of a court order, with authority to detain the child during the first 48-hour period based upon the criteria of Section 39.-032(2), upon the expiration of that period the court must act. The intake officer’s ex parte decision to detain is not, in our view, “a previous order” which relieves the court from responsibility to conduct a detention hearing.

      . This motion was unopposed by the State and supported by the intake officer.

      . Undoubtedly the impetus for the motion for release was the court’s ruling not to waive juvenile jurisdiction made earlier that day. There, is however, nothing in the statute that authorizes continued detention based on the pendency of the State’s request to have the child bound over for trial as an adult.

      . Non-secure custody may be provided in a detention home, see Section 39.01(16), Florida Statutes (1979), or in the child’s own home, see Section 39.01(14), Florida Statutes (1979). That choice rests not with the court, but with the persons charged with the administration of the non-secure detention program. Since either would constitute detention, we need not concern ourselves with the distinction.

      . The renewed motion was precipitated by the public defender learning of an administrative policy (apparently of the persons in charge of non-secure detention) not to accept a juvenile into “non-secure” within several days of the required adjudicatory hearing.

      . See § 39.032(5)(e).

      . While it is said that “. .a child unlike an adult has a right ‘not to liberty but to custody’,” Re Gault, 387 U.S. 1, 17, 87 S.Ct. 1428, 1438, 18 L.Ed.2d 527 (1967), the custody referred to is the custody of his parents, not the State. The right to be free from detention is the issue. Bail cases are apposite.

      . Eastwood v. Hall, 258 So.2d 269 (Fla. 2d DCA 1972), holding that an open court stipulation to extend the speedy trial requirements satisfied the provision of the speedy trial rule calling for written stipulation, is inapposite. The written findings and reasons of a court denying bail have a purpose which is not satisfied by a review of a transcript.

      . The present case was transferred from one family division judge to another after the detention hearing of March 26.
      Had it been the practice of the court below to enter written orders, then the judge to whom the case was transferred would likely have taken note that the absence of a written order signified no detention findings had been made. Instead, the absence of a written order was apparently unremarkable, and the child’s detention was allowed to continue.

      . In United States v. Cramer, 451 F.2d 1198 (5th Cir. 1971), the court stated that although a written order was required, since there were notations on the docket sheet which constituted findings and since the trial court orally announced its reasons behind them, it would proceed to the merits.

      . The undisputed evidence revealed that the child’s parents were capable of providing supervision and care for him; that there was no concern about future appearances in court; that the child had not been “twice previously adjudicated to have committed a delinquent act”; and that the child was not wanted by any other jurisdiction. Therefore, the only criterion under which the court arguably could have detained the child was in order “[t]o protect the person or property of others or of the child.” See § 39.032(2)(a). The fact that one is accused of manslaughter does not, without more, give rise to an inference that his detention is required to protect others or himself.

        .See also Fla.R.Crim.P. 3.130(4)(iii). The State’s argument that the release of the child would be viewed by his peers and the community at large as demeaning the seriousness of the offense is, for the same reason, without merit. We need not address the State’s argument that the court was justified in continuing the adjudicatory hearing and the detention beyond the statutory 21-day limit. The basis for that argument is that delay was justified by virtue of Section 39.032(e). Whether it was or not, detention must first be justified under Sections 39.032(2) and (5)(a).


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    Carl M. COLLIER, Husband, Appellant, v. Dianne M. COLLIER, Wife, Appellee.
    No. 78-1378.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.

      Arthur J. Morburger of Weinstein & Bavly, P. A., Miami, and Carl M. Collier, Lake Worth, for appellant.
    Paxton, Crow, Taplin & Bragg, and Larry Klein, West Palm Beach, for appellee.
   ANSTEAD, Judge.

The primary issue before us is the wife’s contention on cross-appeal that the trial court erred in awarding custody of one of the parties’ children, a 6 year old boy, to the husband while awarding custody of the remaining two children, a 4 year old boy and a 7 year old girl, to the wife.

The wife claims that the circumstances of this case do not justify the trial court’s refusal to follow the general rule that children of divorced parents should be kept together in the same family unit. Arons v. Arons, 94 So.2d 849 (Fla.1957). However, like most rules of law this proposition is not absolute and is subject to a determination as to what custody arrangement would be best for the child. Miller v. Miller, 371 So.2d 565 (Fla. 4th DCA 1979).

Section 61.13, Florida Statutes (Supp 1978) sets forth the general standards that a trial court should consider in determining what is best for the child:

(2)(b) The court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody.
(3) For purpose of custody, the best interests of the child shall be determined by the court’s consideration and evaluation of all factors affecting the best welfare and interests of the child, including, but not limited to:
(a) The love, affection, and other emotional ties existing between the parents and the child.
(b) The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the educating of the child.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) Any other factor considered by the court to be relevant to a particular child custody dispute.

The wife asserts that the only factor supporting the trial court’s award is the stated preference of the child. Section 61.13(3)(i), supra. Although we agree that the record supports a finding that the child was of “sufficient intelligence, understanding, and experience to express a preference,” and that the trial judge’s decision was partially based on that stated preference, we do not agree that this is the only evidence in the record supporting the trial court’s conclusion.

Commendably, neither party has claimed the other was not qualified to have custody. However, our review of the record reveals that there was evidence of special circumstances presented to the trial court which would support a conclusion that it would be in the best interest of the child to be in the custody of the father, rather than the mother. The court received extensive evidence as to this issue concerning the child’s life and relationship with others, pri- or to and during the separation of the parties, as well as evidence of the proposed plans of the parties in the event one or more of the children would be placed in their custody. This evidence, if accepted and found credible by the trial judge, would support a conclusion that the emotional stability and future well-being of the child would best be served by allowing the child to live with his father.

Having reviewed the record and determined that there is competent, substantial evidence in the record to support the trial court’s conclusion that this case involves an exception to the general rule discouraging split custody, we also must recognize that the trial court is vested with substantial discretion in making such decisions. The trial court is in a unique position to appraise the consequences of its custody decision. The Supreme Court has recently reaffirmed the extent of a trial court’s discretion in domestic relations matters in the case of Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980, clarified March 17, 1980), where it was held that if reasonable men could differ as to the propriety of the action taken by the trial court, then the action cannot be held unreasonable and there can be no finding of an abuse of discretion.

Our views here are similar to those expressed by the panel in Miller v. Miller, supra, wherein it was stated:

Perhaps we, sitting as triers of the facts, may have reached a different conclusion. The trial judge, however, had the parties before him and considered all of the necessary criteria including, but not limited to, their background, their daily habits, and the desires of the children as expressed in the testimony of the two psychologists and the parents. Absent a clear showing of an abuse of his discretion we may not substitute our judgment for that of the trial judge. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Such an abuse of discretion has not been demonstrated in the case sub judice.

We have also reviewed the issues raised by the father and former husband as to awards to the former wife of attorney’s fees and personal property and we find no error in these rulings by the trial court.

Accordingly, the judgment and orders of the trial court are hereby affirmed.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . The mother did not seek a rehearing or stay of the trial court’s custody decision and the court was informed at oral argument that the father has had custody of the one child since immediately after the entry of final judgment on May 1, 1978.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Ronald Bruce JANSSON, Appellee.
    No. 79-692.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.
    Rehearing Denied June 19, 1980.
    Jim Smith, Atty. Gen., Tallahassee, James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Steve Lange of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals the trial court’s order discharging appellee Jansson for failure to bring him to trial within the 180-day period prescribed by Rule 3.191(a)(1), Florida Rules of Criminal Procedure. We reverse.

Appellee was arrested on April 22, 1978, on a warrant for burglary. He was released on bond and arraignment was set for May 30, 1978. Appellee failed to appear for arraignment on May 30, 1978, and his bond was estreated. Arraignment was subsequently reset for July 10, 1978, at defense counsel’s request. Neither appellee nor his counsel appeared on July 10, but a written plea of not guilty was filed that morning.

On September 8, 1978, the state and defense entered into a stipulation for continuance, waiving speedy trial for the period of the continuance, and trial was reset for October 10, 1978. On October 9, 1978, a second stipulation for continuance was entered into, again waiving speedy trial for the period of the continuance. The trial court continued the case but no trial date was set. On November 13, 1978, a third stipulation for continuance was entered into, again waiving speedy trial for the period of the continuance. The case was again continued, and trial was subsequently set for December 13, 1978.

On December 12, 1978, the state moved for a continuance due to the illness of a state witness. The motion was denied, but the case was later reset for February 19, 1979.

On February 19, 1979, appellee filed a motion for discharge pursuant to Rule 3.191(d)(1) on the grounds that more than 90 days had elapsed since the last defense continuance on November 11, 1978, and more than 180 days had elapsed since appel-lee’s arrest. At the hearing on the motion, held that same day, it was brought out that appellee had been arrested in Broward County on unrelated charges and was currently being held in jail there. The motion was denied.

On March 13, 1979, appellee filed a “renewed” motion for discharge and on March 28, 1979, a “second renewed” motion for discharge. These motions were heard together on the new date set for trial, March 28, 1979. At that hearing the court calculated the time for speedy trial purposes to be 205 days. It reached that figure by charging against the state the period from the date of appellee’s arrest 'to May 30, 1978, when appellee failed to appear for arraignment: 40 days (actually 38 days); the period from July 10, 1978, when appel-lee’s written plea was entered, to the entry of the first stipulation: 60 days; and the period from December 12, 1978, to the date of the hearing: 105 days. The trial court therefore discharged appellee. This appeal followed timely.

The state contends that appellee’s first motion for discharge, heard on February 19, 1979, was properly denied. We agree. At that point, although 303 days had elapsed since the date of appellee’s arrest, only 166 days that were properly chargeable to the state under the speedy trial rule had elapsed — 38 days from the date of appel-lee’s arrest, April 22, 1978, to May 30, 1978, when appellee failed to appear for arraignment; plus 60 days from July 10, 1978, when appellee’s plea of not guilty was entered, to September 8, 1978, the date of the first stipulation; plus 68 days from December 12, 1978, the date for which trial was set following the last stipulation for continuance, to February 19,1979, the date of the hearing on the motion for discharge.

The state goes on to argue that at that point, Rule 3.191(d)(3) came into play. Rule 3.191(d)(3) provides:

If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.

Again, we agree with the state. The February 19, 1979 motion for discharge was denied because of continuances and delays attributable to appellee.

Thus, pursuant to Rule 3.191(d)(3), the state had 90 days from February 19, 1979, to bring appellee to trial, a period which had not expired on March 28, 1979, the date his “renewed” motion for discharge was granted. State ex rel. Gadson v. Tyson, 334 So.2d 56 (Fla. 4th DCA 1976).

Accordingly, the trial court’s order discharging appellee is REVERSED.

OTT and RYDER, JJ., concur.


author: ORFINGER, Judge.

text:
    Blanche Harris KINGSLAND, Trustee, Appellant, v. NATIONAL ADVERTISING COMPANY, a subsidiary of 3M Company, Appellee.
    No. 78-2471/T4-295.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.

      William L. Coalson of Greene & Greene, P. A., Jacksonville, and Swann, Swann & Haddock, P. A., Orlando, for appellant.
    William D. Rowland, Winter Park, for appellee.
   ORFINGER, Judge.

At oral argument the jurisdiction of the court to entertain this appeal was raised sua sponte. Appellant filed a one count complaint for compensatory and punitive damages as a result of an alleged trespass by appellee. The trial court entered an order granting appellee a partial summary judgment on the claim for punitive damages, and appellant filed a notice of appeal, claiming this to be a final order.

If the order appealed from is a non-final order, it is not appealable under our current rules. Rule 9.130, Florida Rules of Appellate Procedure, permits an appeal from a non-final order which determines the issue of liability in favor of a party seeking affirmative relief. Here, the order was against such party. So we have jurisdiction only if this is a final order.

We should note first that the order appealed from is not a partial final judgment, but only an order granting defendant’s motion for partial final judgment. As such, it is not an appealable final judgment. McCready v. Villas Apartments, 379 So.2d 719 (Fla. 5th DCA 1980). But even if we treat it as a partial final judgment, it is not appealable under the decisions of the Supreme Court of Florida and the other district courts which have considered the problem. Piecemeal appeals are not permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit. S. L. T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974). It is apparent from the single count complaint that the claims for compensatory and punitive damages arise out of the same set of facts, but even had this complaint been framed in separate counts, the result would be the same here, since an order dismissing one of several counts all arising out of the same factual circumstances is not an appealable final order. McClain Construction Corporation v. C. S. Roberts, et al., 351 So.2d 399 (Fla. 2d DCA 1977); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975); Agriesti v. Clevetrust Realty Investors, 381 So.2d 753, (Fla. 4th DCA 1980). Only in those cases where the judgment adjudicates a distinct and severable cause of action is the action of the court final as to that count so as to support an appeal. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

Appellant responds to our query on jurisdiction and cites Pointer Oil Company v. Butler Aviation of Miami, Inc., 293 So.2d 389 (Fla. 3d DCA, 1974); Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976); and Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1st DCA 1978) in support of the appealability of the order, but these cases are all distinguishable. In Pointer, a partial money judgment was entered against defendant, and although the district court held that it was premature, it was final in form and would not have been appealable later. In Allstate, the court accepted common law certiorari on a discovery issue, and having jurisdiction then decided all matters before it. Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974). In Atlantic National Bank, the trial court had entered partial summary judgment in favor of certain parties (but not all) and as to those parties the action was final and complete.

This is clearly a non-final order. Under the old appellate rules, an interlocutory appeal could be taken from an order granting a pártial summary judgment on liability in civil matters (Rule 4.2, Florida Appellate Rules, 1962) but the current rules do not permit it now, except under the limited provisions of Rule 9.130(a)(3)(c)(iv), so the appeal must be dismissed.

APPEAL DISMISSED.

DAUKSCH, C. J., and CROSS, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Jerry STYLES, Appellant, v. STATE of Florida, Appellee.
    No. 79-1066.
    District Court of Appeal of Florida, Second District.
    May 30, 1980.
    Rehearing Denied June 24, 1980.
    Jack O. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Jerry Styles appeals from his convictions of four counts of robbery with a firearm and one count of aggravated battery with a firearm. The appellant argues that the trial court erred in admitting testimony of a subsequent unrelated robbery, the sole relevance of which was to prove the appellant’s criminal propensities and bad character. We agree and reverse.

The appellant was charged with robbing a liquor store in St. Petersburg with a .22 caliber pistol. Money was taken from three employees and one customer. Another customer present in the store was not robbed. All the victims identified the appellant as the robber from a photopak display. During the trial the State introduced evidence of another robbery, over defendant’s objections. The court allowed a witness to testify that he had been robbed by the appellant while working in a bakery in St. Peters-burg. The prosecutor contended that the evidence of the collateral crime was admissible because the appellant had fired his pistol during the bakery robbery and, therefore, the evidence was relevant to show that the gun used in the liquor store robbery was a firearm within the meaning of Section 790.001(6), Florida Statutes (1977).

Evidence of a collateral offense is admissible in a criminal prosecution if it is relevant to prove any factual issue. However, if its sole relevance is to prove the bad character or criminal propensities of the accused, it is inadmissible. Williams v. State, 110 So.2d 654 (Fla.1959). The admission of the testimony concerning the bakery robbery in the appellant’s trial for robbery of a liquor store is an abuse of the Williams Rule. The testimony of the five eyewitnesses adequately established that the appellant used a firearm within the meaning of the statute. Section 790.001(6) defines a firearm as:

any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive.

There is clearly no requirement under the statute that the State prove the gun actually worked. Accordingly, there was no requirement under the statute for the witness to testify that the gun had been fired during the bakery robbery. Whether the gun could fire was not a relevant issue so as to justify the admission of the evidence. Moreover, in view of the overwhelming eyewitness identification of the appellant, identity was not an issue. See Waddy v. State, 355 So.2d 477 (Fla. 1st DCA 1978). And even if identity were an issue in the liquor store robbery, proof that the appellant had committed the bakery robbery was not relevant to show that he committed the liquor store robbery.

[T]he mere fact that a defendant was identified as being involved in another crime does not render such collateral evidence admissible without some similarity in the operation and scheme of both crimes.

Drayton v. State, 292 So.2d 395, 396 (Fla. 3d DCA 1974). Accord, Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974).

The introduction of the testimony concerning the bakery robbery amounted to nothing more than prosecutorial overkill. Accordingly, the appellant’s convictions must be reversed. The case is remanded for further proceedings consistent with this opinion.

BOARDMAN and OTT, JJ., concur.


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

text:
    John H. BASS, Appellant, v. Raymond R. WOLLITZ, Appellee.
    No. LL-316.
    District Court of Appeal of Florida, First District.
    May 30, 1980.
    Rehearing Denied June 27, 1980.

      David C. Goodman, Jacksonville, for appellant.
    Donald M. Bolling, Jacksonville, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

The tenant appeals from a money judgment for unpaid rent, entered for the landlord after a nonjury trial. The five-year commercial lease required the landlord to maintain the roof of the building and required the tenant to maintain all other parts of the premises. Throughout the tenant’s four-year occupancy, portions of his restaurant flooded after heavy rains because of leaks which the tenant complained were through the roof and the landlord insisted were through the walls. The tenant withheld rent payments after the tenth month of the fourth year of the lease, and he abandoned the premises early in the fifth year.

The trial court found that the leak was through the roof and that the landlord’s failure to repair would have constituted a constructive eviction, excusing the tenant from further rental payments, but for the tenant’s failure to abandon the premises within a reasonable time. Taking the record as a whole, we find substantial competent evidence supporting the trial court’s decision that the tenant’s failure for four years to abandon the premises, on account of conditions by which he claimed he was constructively evicted, vitiated any privilege he may have had to abandon the premises as unhabitable and thus end his liability for rent. We therefore affirm.

The trial court’s judgment states:

The leaking roof was of such a serious nature that it indeed constituted a constructive eviction, however, the Defendant (Bass), in order to take advantage of such constructive eviction, should have vacated the premises promptly, but rather chose to remain on the premises for a period of more than four (4) years.

The well-worn principle on which this judgment rests is as stated in Richards v. Dodge, 150 So.2d 477, 481 (Fla. 2d DCA 1963):

Generally, abandonment of the premises within a reasonable time after the landlord’s wrongful act is a necessary element of constructive eviction. See 32 Am.Jur., Landlord and Tenant, §§ 245-264 (1955); 52 C.J.S. Landlord and Tenant §§ 455-459 (1947); Annot. 75 A.L.R. 1114 (1931).

In other words, a tenant who too long tolerates intolerable conditions in a leased building loses his privilege not to tolerate them any longer, so that, quitting the premises at last, he remains liable for rent to the end of the term. This doctrine is not to be applied uncritically, for there is a degree of perversity in denying the tenant relief when the money in issue is future rent for a vacated and substantially unhabitable building, not past rent due for time the tenant remained in possession. Why, in those circumstances, should the landlord be rewarded for the persistence of his fault and the tenant penalized for the steadiness of his patience?

The crusty rationale of early decisions was that, as a leasehold is an estate in land which one takes for the value of the land’s produce, and only incidentally for the use of a building, the landlord’s covenant concerning the building’s condition and the tenant’s covenant to pay rent are independent of each other; therefore the tenant’s obligation is to pay rent until he is evicted; and while the landlord may evict a tenant “constructively,” by refusing to remedy intolerable leasehold conditions, as surely as by “actual expulsion”, a tenant who remains in possession cannot logically be regarded as constructively evicted. Therefore the tenant’s continued habitation, after cause for abandonment occurs, constitutes “waiver of the right of abandonment," or, as stated more pragmatically, the tenant’s continued habitation “negatives any inference that the conduct complained of was of so serious a character as to amount to a constructive eviction.”

The waiver rule has been roundly criticized as having little justification beyond its appropriateness to a dryly logical formula which holds that, as there can be no end to rentals without an eviction, there was no eviction if rentals were thereafter paid. Obviously, the waiver rule as so stated requires the tenant to abandon at his peril, after calculating both whether and when the premises have become intolerable due to the landlord’s fault. For any miscalculation — if in law the premises are not yet intolerable, or were long ago as intolerable as now, or are not intolerable but merely inconvenient, or not intolerable at the landlord’s fault — the tenant’s penalty is the same: he is both on the street and liable for rent to the end of the term. The harshness of the constructive eviction doctrine and its waiver corollary is especially evident in the tenancies of poor urban families who have few or no alternatives for a home, The doctrine also burdens commercial leaseholds, since an aggrieved tenant is put to a choice between moving his business, thereby risking new capital and forfeiting all customer goodwill associated with his present location, and remaining in possession of the premises, thereby waiving the right to assert a constructive eviction. Though the tenant may retain a right of action for damages, or a setoff against rentals for damages resulting from the landlord’s default, damages may be difficult to prove and an incomplete substitute for the lost privilege of quitting the unhabi-table tenancy.

The Florida Residential Landlord and Tenant Act softens the waiver rule and dispenses with constructive eviction as a rationale for deciding disputes over residential tenancies. Where there is no statutory relief, exceptions to the waiver rule have been created-by the courts. A tenant who does not promptly abandon the unhabitable premises may nevertheless be excused, and his future rent abated, if the objectionable condition became more aggravated or produced a cumulative effect during the tenant’s continued possession, or if the tenant relied for a time on the landlord’s promise to remedy the situation, or if he was mollified by landlord attempts to repair, or if the cost of acquiring new quarters is so prohibitive as to preclude any real choice between abandoning or retaining possession. But those exceptions do not reach this case. Here, the leaks did not grow worse during the tenant’s four-year occupancy and they did not have a cumulative deleterious effect on the tenancy, which must be distinguished from the tenant’s patience. Here, the landlord refused to repair and indeed insisted, even to the date of trial, that the leaks were through the wall and therefore not his responsibility.

We affirm the circuit court’s judgment in this case because we recognize that the waiver rule, for all its rigidity in times past, has current value in testing subjective and problematic claims of unhabitability and in expressing the ultimate conclusion of the trier of fact that, under all the circumstances, it was unreasonable for a tenant to have lived so long with a condition he considers so intolerable as to justify abandoning the leasehold. We affirm the judgment for rent, not because the waiver rule must necessarily bar all tardy defenses of constructive eviction, but because the following circumstances may properly have persuaded the trier of fact that the defense of constructive eviction should be rejected in this case: the four year delay after the assumed cause for abandonment arose; the tenant’s failure during his possession to show the landlord a reliable independent opinion about the source of the leaks; the uncontra-dicted evidence that the tenant told the landlord his restaurant was losing money; the tenant’s failure to reestablish his restaurant elsewhere, or even consider an alternative site; and the tenant’s apparent poor health at the time he quit the premises.

AFFIRMED.

MILLS, C. J., and ERVIN, J., concur.

      . The tenant, whose testimony the trial court evidently accepted, testified he “told Mr. Wol-litz [the landlord] and showed him where it was coming from and he didn’t want to believe it. He said it was coming through the wall and wanted me to fix it. I said, ‘It’s not my responsibility because it’s coming from the roof

      . See 1 Tiffany, Landlord and Tenant, section 16 (1910).

      . Restatement of Contracts, Section 290 (1932). In Masser v. London Operating Co., 106 Fla. 474, 498, 145 So. 79, 83 (1932), the Court stated, quoting a treatise:
      The landlord’s covenant to repair and the tenant’s to pay rent are independent covenants, and at common law a breach of the former is no defense to an action on the latter.

        See generally, Rapacz, Origin and Evolution of Constructive Eviction in the United States, 1 DePaul L.Rev. 69 (1951).

      . Edgerton v. Page, 20 N.Y. 281, 284 (1859), was one of the first American decisions to develop the constructive eviction doctrine:
      Such act of the lessor, accompanied by an abandonment of possession by the lessee, is deemed a virtual expulsion of the tenant, and, equally with an actual expulsion, bars the recovery of rent. The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed. . .
      The Florida Supreme Court recognized the availability of the constructive eviction defense in Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931).

      . Two Rector Street Corp. v. Bein, 226 A.D. 73, 76, 234 N.Y.S. 409, 412 (1st Dept. 1929):
      A necessary element of a constructive eviction is a surrender by the tenant of the demised premises. A tenant cannot claim un-habitability, and at the same time continue to inhabit. .

      . Barrett v. Boddie, 158 Ill. 479, 484, 42 N.E. 143, 144 (1895):
      Possession retained after an alleged constructive eviction is a waiver of the right of abandonment.
      2 McAdam, Landlord and Tenant (3 ed. 1900), section 404 at p. 1293:
      Certain acts of the landlord causing a diminution of beneficial enjoyment when sufficient to justify the tenant in leaving the premises may be turned by him into an eviction by so doing, but the tenant may waive the eviction by neglecting to abandon the premises.
      See Annot., 91 A.L.R.2d 638 (1963) (time within which a tenant must abandon premises to preserve constructive eviction.)

      . Chelton Avenue Bldg. Corp. v. Mayer, 316 Pa. 228, 232, 172 A. 675, 677 (1934).

      . In Lemle v. Breeden, 51 Haw. 426, 435, 462 P.2d 470, 475, 40 A.L.R.3d 637, 644 (1969), the Hawaii Supreme Court discussed the dilemma faced by tenants who rely on a constructive eviction defense:
      Abandonment is always at the risk of establishing sufficient facts to constitute constructive eviction or the tenant will be liable for breach of the rental agreement. Also the tenant is forced to gamble on the time factor as he must abandon within a “reasonable” time or be deemed to have “waived” the defects.

      . Restatement (Second) of Property, section 6.1, Comment h, Reporter’s Note at p. 234 (1977):
      This [constructive eviction waiver] doctrine has been widely criticized on the grounds that it makes the law completely unavailable to tenants who for one reason or another cannot move, e. g., indigent urban apartment dwellers in many cities, and available only at great risk to others who must first deprive themselves of such benefit as they are deriving from the premises before getting a ruling on whether they were justified in doing so.

        See generally, Note, The Indigent Tenant and the Doctrine of Constructive Eviction, 1968 Wash.U.L.Q. 461.

      . Reste Realty Corp. v. Cooper, 53 N.J. 444, 461, 251 A.2d 268, 277 (1969) aptly described the quandary of a commercial lessee confronted with the choice of vacating the premises or waiving his constructive eviction claim:
      What constitutes a reasonable time [within which to surrender the premises] depends upon the circumstances of each case. In considering the problem courts must be sympathetic toward the tenant’s plight. Vacation of the premises is a drastic course and must be taken at his peril. If he vacates, and it is held at a later time in a suit for rent for the unexpired term that the landlord’s course of action did not reach the dimensions of constructive eviction, a substantial liability may be imposed upon him. That risk and the practical inconvenience and difficulties attendant upon finding and moving to suitable quarters counsel caution.

        See also, Greenstein v. Conradi, 161 Minn. 234, 235, 201 N.W. 602 (1924), where the commercial tenant stayed in possession 2 months after insufficient heat became apparent:
      The defendant [tenant] had some sort of business established. Moving meant expense and possible loss and involved the necessity of securing a suitable new location. He could tolerate for awhile an uncomfortable condition, of which he complained and which could be remedied by his lessor, without being charged as a matter of law with a waiver of his right to claim a constructive eviction.

      . Masser v. London Operating Co., 106 Fla. 474, 499-500, 145 So. 79, 84 (1932), where the court stated:
      The tenants themselves had a right, after waiting a reasonable time after notice to the lessor, to make the necessary repairs and deduct the expense thereof from the rent, or, in an action for the rent, to set-off or recoup his damages resulting from the landlord’s breach of his covenant, or to leave the premises unrepaired and sue the lessor for the damages they may have sustained from the lessor’s failure to repair.

        See, e. g., Rosen v. Needelman, 83 So.2d 113 (Fla.1955); Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 684 (Fla. 3d DCA 1962) (court affirmed refund of tenant’s security deposit after constructive eviction).

      . Responding to the cross-examiner’s question, “[D]id you lose business, to your knowledge, as a result of this water problem?”, appellant testified:
      I couldn’t go so far as [to] say, that . . I mean, ... I couldn’t say that and tell the truth. I’m sure I have, but I couldn’t say it and tell the truth.

      . Section 83.56(5), Florida Statutes (1979):
      [I]f the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the . tenant waives his right to terminate the rental agreement . . ., but not for any subsequent or continuing noncompliance.

      . Ralston, Inc. v. Miller, 357 So.2d 1066 (Fla. 3d DCA 1978) (tenant’s continued possession of premises while leaking roof worsened did not constitute waiver); Marks v. Dellaglio, 56 A.D. 299, 67 N.Y.S. 736 (1st Dept. 1900) (tenant complained of offensive odors on premises; “increasing effect” of odors negated landlord’s contention of tenant waiver); Batterman v. Levenson, 102 Misc. 92, 168 N.Y.S. 197 (Sup.Ct.App. Term 1917) (no waiver where rats on premises became more numerous during tenant’s continued possession); 1 American Law of Property, Section 3.51 (A.J. Casner ed. 1952).

      . 3 Thompson on Real Property, section 1132 (Grimes Replacement 1959); Thirteenth and Washington Sts. Corp. v. Nelsen, 123 Utah 70, 79, 254 P.2d 847, 852 (1953):
      It is true that the troubles as to most of the defects complained of continued practically through the length of defendants’ occupation and that during both winters defendants had heating problems but did not move out until early summer when such problems would not exist. However, repeated complaints were followed by promises from plaintiff’s agents that the conditions would be improved. Defendants were justified in waiting to see if the promises would be fulfilled

        Johansen v. Arizona Hotel, 37 Ariz. 166, 173-174, 291 P. 1005, 1008 (1930),
      The great weight of authority is to the effect that in order to rely upon this defense [constructive eviction] the defendant [tenant] must abandon the premises within a reasonable time, or the right to claim such an eviction will be waived. However, where the evil complained of was capable of being remedied by the landlord, who promised defendant that he would remedy it, the defendant had the right to rely upon such promise and remain in possession. .

        Hartenbauer v. Brumbaugh, 220 Ill.App. 326 (1920) (tenant did not waive constructive eviction by remaining in apartment house used by another tenant for prostitution, because landlord’s agent promised to remedy the situation); Westland Housing Corp. v. Scott, 312 Mass. 375, 44 N.E.2d 959 (1942) (no waiver where landlord promised to stop soot and smoke from oil burner, because landlord promised to but did not adequately repair).

      . In Aro Glass and Upholstery Co. v. Munson-Smith Motors, Inc., 12 Wash.App. 6, 10, 528 P.2d 502, 506 (1974), the Washington Court of Appeals excused the tenant’s continued possession of the premises, stating:
      In the case at bench, the landlord had ample opportunity to correct the situation — and indeed, made several unsatisfactory attempts to correct the situation. Clearly, also, Mun-son-Smith [tenant] continually pursued its requests and demands that corrective action be taken. Under that state of the facts the lessee cannot be said to have waived the right to assert constructive eviction as a defense to the action for rent.

        Hancock Construction Co. v. Bassinger, 198 N.Y.S. 614 (Sup.Ct. App. Term 1923) (no waiver where tenant relied on landlord’s efforts to rid premises of vermin).

      . Thirteenth and Washington Streets Corp. v. Nelsen, supra note 15 (serious lack of suitable office space caused tenant’s continued possession; court held tenant did not wait an unreasonable time before vacating); Majen Realty Corp. v. Glotzer, 61 N.Y.S.2d 195 (Mun.Ct. Bronx 1946) (court noted critical housing shortage in post World War II New York City, excused tenant’s continued possession of a portion of the fire-damaged premises).


author: LARRY G. SMITH, Judge.

text:
    Lisa E. SMITH, Appellant, v. DIXIE PACKERS, INC., and Crawford & Company, Appellees.
    No. PP-414.
    District Court of Appeal of Florida, First District.
    June 2, 1980.
    Rehearing Denied July 1, 1980.

      W. Roderick Bowdoin of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appel-lees.
   LARRY G. SMITH, Judge.

The sole issue in this worker’s compensation appeal is whether the Judge of Industrial Claims was in error in denying an award of attorney’s fees to the claimant’s attorney. In denying attorney’s fees, the Judge relied upon the carrier’s acceptance of 100% disability of claimant’s eye within twenty-one days after being advised of claimant’s condition by letter from claimant’s attorney, enclosing a report from the treating physician advising of appellant’s increased disability. The claimant contends that the employer and carrier ignored her claim for increased benefits filed months before acceptance of the increased disability, ignored complaints that her vision was getting worse, failed to provide her with medical attention, and would never have had her reexamined, or increased her disability rating, without the assistance of her counsel. We agree with the claimant’s position, and reverse.

It is undisputed that claimant received a compensable injury to her left eye. On May 8, 1978, Dr. Fitzgerald, the treating physician, found that claimant had reached maximum medical improvement, with a 35% partial impairment to her left eye. The carrier accepted this rating and commenced permanent partial disability benefits. Shortly thereafter, claimant filed her claim seeking increased disability. She testified that she also informed her employer, and the carrier’s representative, that her vision was getting worse. Her complaints were ignored. She stated that her attorney was the one who advised her to see a physician, even if she had to pay for it herself. As a result of her attorney’s instructions, she returned for reexamination by Dr. Fitzgerald. In March, 1979, tests were performed at Shands Teaching Hospital in Gainesville. On April 1, 1979 claimant applied for a hearing, and notice of hearing was sent stating that it was for the purpose of determining whether claimant was entitled to additional permanent partial disability benefits. Claimant’s attorney wrote to the treating physician, Dr. Fitzgerald, requesting an opinion whether the claimant would have a total loss of vision in the left eye. Dr. Fitzgerald responded, advising claimant’s attorney that the claimant “may totally lose vision, but the present visual level is already that of legal blindness.” On May 1, 1979, promptly upon receipt of Dr. Fitzgerald’s report, claimant’s attorney wrote to the employer-carrier attaching a copy of Dr. Fitzgerald’s report. On May 14, 1979, the carrier accepted the increased disability, and commenced payment of 100% disability of the eye.

It is clear from the foregoing that the reexamination, testing, and the communication to the carrier showing claimant’s additional loss of vision, were the products of her attorney’s efforts. The employer-carrier had nearly one year from the date claimant filed her claim for additional benefits within which to have her reexamined, treated if necessary, and to determine whether her condition was, indeed, getting worse as she complained to her employer and the carrier’s representative. During this entire time the carrier did nothing.

We think this is a classic case of the employer-carrier’s attempt to insulate themselves from the plight of the claimant, and thereby erect a “wall of willful ignorance” as justification for their failure to investigate and determine the merits of a claim. See Colvin v. State, Department of Transportation, 311 So.2d 366 (Fla.1975). It was simply too late, after the carrier received a letter and the medical report from claimant’s attorney, for it to accept liability for 100% loss of the eye, and thereby avoid attorney’s fees. The employer-carrier cannot insulate themselves from knowledge of the claimant’s disability rating, nor can they abdicate their investigative responsibility by inaction. Woodworth v. Benedict and Jordan Construction Company, IRC Order 2-2693 (September 10, 1974), cert. den. 312 So.2d 198 (Fla.1975); Osteen v. Georgia-Pacific Corporation, IRC Order 2-3383 (March 24, 1978). An employer or carrier who does not exercise the right and duty to investigate, and who forces the burden of proving liability on the claimant to the extent that the claimant requires assistance of an attorney for actions necessary to perfect the claim, is not protected from payment of attorney’s fees by ignorance resulting from failure to investigate. Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970). The cases relied upon by the employer-carrier are not applicable. This case does not involve a simple matter of a physician’s delay in reporting the appropriate disability, Lehigh Portland Cement Company v. Branch, 319 So.2d 13 (Fla.1975); there was no retroactive finding of a maximum medical improvement date, Genera] Services of Florida v. Acquaviva, IRC Order 2-3151 (April 29, 1977), cert. dismissed 354 So.2d 978 (Fla.1977); and the date of notice of the claimant’s increased disability which was held to trigger the twenty-one day period in Jones Miami Beach Express v. Mula, IRC Order 2-3245 (October 3, 1977), cert. den. 361 So.2d 834 (Fla.1978), is not the crucial date for determination of the timeliness of the carrier’s acceptance of increased liability under the circumstances of this case.

The order appealed is reversed and remanded for award of attorney’s fees consistent with this opinion.

McCORD and WENTWORTH, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Gilbert Howard SHAYNE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-736.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 2, 1980.
    Mark King Leban, Dresnick & Freeman, Miami, for appellant.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    • Before SCHWARTZ and DANIEL PEARSON, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The defendant-appellant was found guilty after a nolo plea to several charges which were ultimately based on two recorded telephone conversations of January 12 and 13, 1978, in which he engaged in illegal bookmaking. Since these conversations were recorded with the consent of the other party, one Alpert, and under police direction and supervision, there is no question that the “bugging” was entirely permissible under Section 934.03(2)(c), Florida Statutes (1977). Tollett v. State, 272 So.2d 490 (Fla.1973). Shayne contends, however, that the contents of the January calls should have been suppressed pursuant to Section 934.06, Florida Statutes (1977) because they were “derived from” an illegally intercepted telephone call from the same informant which took place on September 26, 1977. It is argued in this regard that the police would not have authorized the tap on Alpert’s phone, thus legalizing the recording of the January conversations, if they had not been aware of the “hard evidence” of Shayne’s bookmaking activities contained in the transcription of the September call. We completely disagree with this position.

Shayne was under intense police suspicion and scrutiny both before and after September, 1977 on grounds unrelated to the improperly recorded call. In addition, the officers in question were otherwise fully aware of Alpert’s avowed continuing ability to engage the defendant in a bookmaking conversation at any time. Therefore, it is highly doubtful that there was even a “but for” relationship between the September and the January recordings. Assuming, however, that this was in fact the case, it is not enough to permit Shayne to prevail. State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979) and cases cited. It is obvious that the evidence of the January conversations, recorded as they were in a perfectly lawful and authorized manner which would be sustained if the September call had never occurred, was obtained, in the words of Wong Sun, by means “sufficiently distinguishable [from the initial illegality] to be purged of the primary taint.” The fact that information which is preserved through unlawful means provides a subjective reason for motivating a lawful investigation is no basis for suppressing evidence which is thereafter properly secured. See Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979). This description of the present situation itself sufficiently demonstrates that the relationship between the pieces of evidence was so extremely “attenuated as to dissipate the taint” as a matter of law. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939). It is, in other words, irrelevant that the officer smelled the blossom of the poisonous tree before he authorized the tap. See also United States v. Crews, - U.S. -, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

Affirmed.

      . The appellant raises no issue concerning the absence of an intercept warrant authorizing the recording. See Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979).

      . The September 26, 1977 conversation was suppressed (and the charge based upon it thereafter nol prossed) because no officer had expressly directed Alpert to record it. The state does not dispute the correctness of this ruling.

        .Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).


author: NESBITT, Judge.

text:
    In the Interest of J. F., a child.
    No. 79-1223.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 2, 1980.

      Melvin S. Black, Miami, for appellant.
    Myles J. Tralins and Richard J. Potash, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal of a natural mother from an order permanently committing her daughter to the Florida Department "of Health and Rehabilitative Services for subsequent adoption, which order terminates parental rights.

The central point for review is whether the circuit court followed and employed the correct statute(s) governing a commitment proceeding. The mother contends that the court should have applied Section 39.-41(l)(d) Florida Statutes (Supp.1978) and the definition of “abandoned” contained in Section 39.01(1), Florida Statutes (Supp. 1978) which became effective October 1, 1978. The appellant argues that by utilizing the former provisions of Section 39.-ll(l)(d), Florida Statutes (1977), the circuit court did not apply the applicable law. Like the circuit court below, we find that the record supports the commitment under either application of the cited statutes and affirm.

The child was voluntarily relinquished to the Department by the natural mother on November 2, 1976 for temporary assistance and foster care. On January 5, 1977, the Department petitioned the court for temporary custody which was granted by order entered January 14, 1977 based upon a waiver, consent, and joinder executed by the natural mother. On August 2, 1978, the Department petitioned for permanent commitment, which petition tracked the then-applicable provisions of Section 39.11(l)(d), Florida Statutes (1977). The hearing on permanent commitment was continued, by stipulation of the attorney for the mother, the guardian ad litem for the child, and the Department, for a period of three months so as to afford the mother an opportunity for: (a) psychiatric evaluation; (b) therapy; (c) vocational rehabilitation; and (d) completion of a program of parent effectiveness training. The petition for permanent commitment pended before the court by stipulation; motions for continuance and the evidentiary hearing thereon were not concluded until May 23, 1979. The final order of commitment entered on June 5, 1979 made hybrid findings sufficient to support a permanent commitment under either the procedure applicable and governing before October 1, 1978 or that which went into effect after that date.

A comparison of the criteria delineated in Section 39.11(l)(d), Florida Statutes (1977) and that set forth in Section 39.41(l)(d) and Section 39.01(1), Florida Statutes (Supp. 1978) indicates that the former section sets forth a more stringent burden to be met prior to the permanent commitment of the child to an appropriate agency. Under the contemporary criteria, abandonment occurs when a parent fails to provide support or communicate with a child for a period of six months. Marginal efforts by a parent to support and communicate with the child during the six months period do not evince a settled purpose to assume parental duties and allow a trial court to declare the child to have been abandoned. Under the former provisions of Section 39.11(l)(d), the period of abandonment was one year and required a substantial showing of financial parental neglect and parental unfitness detrimental to the child’s welfare. In re Smith, 299 So.2d 127 (Fla.3d DCA 1974). Additionally, a showing was required that permanent commitment was in the best interest of the child. In re R. J. C., 300 So.2d 54 (Fla.1st DCA 1974).

In this case, by the mother’s testimony, she visited the child only three times during the entire period the child was in temporary custody of the Department. The first visit occurred in December of 1976; the second in,April of 1977; and the final visit in October of 1978. The mother admitted she was never told she could not see the child. She further admitted she did not request visits on the child’s birthday or holidays. Other parts of her testimony which are somewhat conflicting are urged here as a basis for showing that a bureaucratic veil was drawn between the mother and her child. If we were of the view that such an argument was supported by the record, we would unhesitatingly reverse because of our discountenance of such conduct. However, the trial judge evidently believed the testimony of the social worker and found the mother had chosen to visit the child on only two occasions.

Following the order granting the petition for temporary custody issued January 14, 1977, appellant visited her child sometime in April of 1977. Nearly eighteen months had elapsed between the time of that visit and the next one in October of 1978. The October visit followed the petition for permanent commitment. Even under the former provisions of Section 39.11(l)(d), Florida Statutes (1977), appellant did not maintain necessary contacts with her child.

Parts of the stipulation made to afford the mother an opportunity to rehabilitate herself were complied with, although belatedly, while others were largely uncompleted. A psychologist testified that the mother had emotional difficulties, was dependent and immature, and was functioning at a lower level than average intelligence terming her a borderline individual.

The trial court found the child to have been abandoned in that the mother had never contributed to the child’s support or demonstrated any degree of parental fitness, stability or emotional maturity so as to develop any type of relationship with her child. The findings of the trial court that abandonment occurred under Section 39.-41(l)(d) and 39.01(1) or 39.11(l)(d) are supported by clear and convincing evidence. In re Estate of C. K. G., 365 So.2d 424 (Fla.2d DCA 1978).

This court in Kokay v. South Carolina Ins. Co., 380 So.2d 489, 491 (Fla.3d DCA 1980) pointed out that:

The well established principle of law is that where the words used and the grammatical construction employed in a statute are clear and they convey a definite meaning, the legislature is presumed to have meant what it said and, therefore, it is unnecessary to resort to the rules of statutory construction, [citations omitted]

In spite of this, appellant suggests, because the mother placed the child with the Department for temporary assistance and foster care, it negates a finding that the parent had made no provision for the child’s support. We reject this argument because a finding consistent with it would preclude the Department from ever filing a petition for permanent commitment of a child which had been left with it. Clearly, this is not the legislative intent under any of the cited statutes.

It is further argued that the stipulation between the Department, the guardian ad litem, and counsel for the mother interrupted the running of the requisite time period in order to constitute abandonment. Again, we reject such a contention as unsound in that there is no provision within the statute for tolling the running of the six-month time period and the adoption of such a proposition would have a chilling effect on the Department and dissuade it from ever extending grace to parents to afford them an opportunity to become rehabilitated. The delicate interrelationship between a parent and a child should be fostered and encouraged by the Department.

Finally, appellant urges, citing Solomon v. McLucas, 382 So.2d 339 (Fla.2d DCA 1980), specifically footnote three, that termination of a parent’s right to enjoy a child is so profound a judicial act as to require the same standards and criteria as would be required to terminate the rights of the parent in an adoption proceeding pursuant to Chapter 63, Florida Statutes (1977).

The commitment of a child under Section 39.41(1), Florida Statutes (Supp.1978) or Section 39.11(l)(d), Florida Statutes (1977) has the effect of terminating the parents’ rights not unlike an adoption proceeding under Chapter 63 and, although an equally profound judicial act, the Legislature has specifically set out different criteria for the separate procedures. The courts may not depart from the plain language employed by the Legislature so as to place a construction on a statute which will require a departure from the natural meaning of the language used merely to satisfy the court’s own predilection. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla.1st DCA 1963); James Talcott, Inc. v. Bank of Miami Beach, 143 So.2d 657 (Fla.3d DCA. 1962). The Legislature undoubtedly had good reason to adopt less stringent criteria in a commitment proceeding pursuant to Chapter 39, Florida Statutes. The paramount interest of society is in its concern for the well being of a child. The placement of a child in an environment where it can receive the proper support, nurture, maintenance, education, and inculcation of ethical values so that the child may attain the status of emancipation and be able to participate as a productive and law abiding citizen is the direct and immediate concern of a commitment proceeding. An adoption proceeding pursuant to Chapter 63, Florida Statutes, is essentially a contest between competing private parties seeking parental rights so that a child may receive permanent custodial status. Commitment proceedings, pursuant to Chapter 39, Florida Statutes, have as their object the termination of rights of nominal parents to afford a child a temporary place of refuge. There is significant legislative intent in the adoption of Sections 39.41(l)(d) and 39.01(1), Florida Statutes (Supp.1978) so as to shorten the time interval and make the test of abandonment less stringent in order to prevent further damage and deterioration to the child left in the nominal care of a parent.

In this case, after the natural mother had been afforded competent counsel and afforded an opportunity to rehabilitate herself, she did not manifest the parental instinct and motivations sufficient to retrieve the child she allegedly desires to rear. Faced with this difficult task, we find the able trial judge gave the mother every consideration and opportunity to rehabilitate herself and under the circumstances had no alternative but to enter the permanent commitment order which is affirmed.

      . From that point on, the record demonstrates the mother has at all times been represented by court-appointed counsel.


author: BOARDMAN, Judge.

text:
    RAYMOND, JAMES & ASSOCIATES, INC., a corporation doing business within the State of Florida, and Ronald Thatcher, Appellants, v. Vallery V. MAVES and Ethel Pryor Maves, Appellees.
    No. 79-476.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.

      Guy M. Burns of Jacobs, Robbins & Gay-nor, St. Petersburg, for appellants.
    Paul J. Ruby, II, Marco Island, for appel-lees.
   BOARDMAN, Judge.

Raymond, James & Associates, Inc. (RJ&A), a brokerage firm, and Ronald Thatcher, defendants below, seek review by interlocutory appeal of the trial court’s order refusing to compel arbitration pursuant to the brokerage agreement between RJ&A and appellees/plaintiffs Vallery and Ethel Maves. We reverse.

Appellees entered into an agreement dated August 18, 1975, with RJ&A whereby it was to act as securities broker for appellees on accounts opened there by appellees. Paragraph 14 of this agreement provides:

14. Any controversy between us arising out of or relating to the contract or the breach thereof shall be settled by arbitration in accordance with the rules of the American Arbitration Association, or the Arbitration Committee of the Midwest Stock Exchange, as I may elect. If I do not make such election by registered mail addressed to you at your main office within (5) days after receipt of notification from you requesting such election, then I authorize you to make such election in my behalf. Any arbitration hereunder shall be before at least three arbitrators and the award of the arbitrators, or of a majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction. It is understood and agreed that the arbitrators appointed pursuant to the provisions hereof shall be required fully to conform with the laws of the State of Florida in arriving at their determination with respect to the issues of any controversy submitted to them hereunder.

Appellees subsequently filed a complaint against appellants seeking damages for negligence and fraudulent misrepresentation in the handling of appellees’ brokerage account. Appellants then filed a motion, together with Thatcher’s supporting affidavit, to stay the proceedings and compel arbitration pursuant to the contract. The trial court denied the motion. This appeal timely followed.

The courts of this state have repeatedly approved arbitration clauses, giving effect to the letter and purpose of the Florida Arbitration Code, Sections 682.01-22, Florida Statutes (1977). The trial court was required under Section 682.03 to grant an application for an order compelling arbitration in Morton Z. Levine & Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla.2d DCA 1976). In that case, citing Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla.4th DCA 1973), this court refused to apply the rational of Shearson, Hammill & Co. v. Vouis, 247 So.2d 733 (Fla.3d DCA), cert. denied, 253 So.2d 444 (Fla.1971). The Shearson court had refused to compel arbitration because of the policy of Florida securities law, citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). However, the Wilko case offers no support for such a policy argument in Florida since that case dealt with an alleged violation of federal securities law and the application of specific federal statutory requirements. These requirements have no counterpart in Florida’s securities legislation and no application at all to this case.

The Shearson decision is in addition distinguishable since it reasons that the arbitration agreement unlawfully attempted to oust the court from its jurisdiction. Today neither that court nor the other district courts of appeal follow that rationale in applying arbitration agreements. They have chosen instead to apply the letter and spirit of the Florida Arbitration Code. See Collier Land Corp. v. Royal Palm Beach Realty, Inc., 338 So.2d 859 (Fla.3d DCA 1976), cert. denied, 348 So.2d 945 (Fla.1977).

This court in Levine listed several reasons for distinguishing Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974), relied upon by appellees. These same factors distinguish Klosters from the case at bar. In Klosters there were complicated issues, the presence of numerous third parties, requests for equitable remedies as opposed to money damages, and a waiver of the right to arbitration by the defendants. In this case, the issues are not complicated and do not involve parties not privy to the original contract; appellees are not claiming equitable remedies; and there are no allegations of waiver of arbitration rights. The allegations of fraudulent misrepresentation in the complaint do not alter the result mandated by the Florida Arbitration Code. See Watson v. Chase Chemical Corp., 249 So.2d 53 (Fla.1st DCA 1971).

Appellees contend that their cause of action is independent of any written contract. A close reading of their complaint reveals no support for that contention. The relationship between appellants and appellees derives from a brokerage agreement whereby appellees employed appellants to act as their stockbroker and investment counselor, and all funds delivered by appellees to appellants, which appellees claim were fraudulently or negligently invested, were delivered pursuant to this agreement. None of the transactions complained of occurred pri- or to execution of the agreement.

We therefore conclude that the trial court erred in refusing to stay the proceedings and compel arbitration. Morton Z. Levine & Associates, Chartered v. Van Deree, supra.

Accordingly, the trial court’s order is REVERSED and the cause REMANDED with directions to enter an order staying court proceedings and compelling arbitration.

GRIMES, C. J., and RYDER, J., concur.


text:
    James L. WILLIS and Patricia Ann Willis, husband and wife, Appellants, v. HILLSBOROUGH HOMES, INC., Appellee.
    No. 79-2158.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.

      Carl G. Rassler, Tampa, for appellants.
    William R. Platt, Tampa, for appellee.
   BOARDMAN, Judge.

James and Patricia Willis, defendants below, take this interlocutory appeal from an order of the trial court directing that they immediately disburse to plaintiff/appellee Hillsborough Homes, Inc. sixty per cent of the amount in dispute. We reverse.

Appellee filed a complaint against appellants seeking to foreclose a mechanic’s lien on certain real property owned by appellants, alleging that $11,654 remained due and owing to appellee. Appellants filed a motion requesting that the trial court compel appellee’s agent, R. M. Segrest, to produce a check to both parties from Fidelity Federal Savings & Loan which Segrest was holding and which appellants had refused to endorse, offering to deposit the proceeds from the check into the registry of the court or to deposit the funds as otherwise agreed between counsel for the parties pending disposition of the case. Appellants also filed an answer and counterclaim, denying essentially all of the allegations in appellee’s complaint.

After hearing on appellants’ motion, the trial court ordered appellants to endorse the check and ordered appellants’ counsel to disburse to appellee $6,992.40 from the proceeds of the check, that amount being sixty per cent of the amount in dispute. Appellants filed a motion for rehearing, objecting to the requirement that appellee be paid a portion of the amount in dispute when no evidence had been presented to support such an order. .The trial court denied the motion. This interlocutory appeal followed timely.

We have not been able to find any theory or authority to support the trial court’s action. Appellants’ pleadings denied that appellee was entitled to any of the amount claimed, and there was no evidentiary basis for an award to appellee of any portion of the amount in dispute, even on a temporary basis. Rule 1.600, Florida Rules of Civil Procedure, authorizes deposit with the court of all or any part of the sum of money in dispute. This was what appellants requested and what the trial court should have approved if it chose to take any action at all with respect to the check in question. In the alternative, the trial court could have ordered counsel for either party to place the funds in an escrow account pending final disposition of the case, as the court in fact did order with respect to the amount of the proceeds of the check remaining after disbursement of $6,992.40 to appellee.

Accordingly, the trial court’s order requiring appellants to disburse $6,992.40 of the check proceeds to appellee is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

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

      . The appeal was taken pursuant to Rule 9.130(a)(3)(C)(ii), Florida Rules of Appellate Procedure, which authorizes appellate review of nonfinal orders of lower tribunals which determine the right to immediate possession of property.


author: ANSTEAD, Judge. LETTS, Chief Judge,

text:
    F. S. N., a child, Petitioner, v. Sam T. JOYCE, Sheriff of Indian River County, Respondent.
    No. 80-792.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Elton H. Schwarz, Public Defender, and Paul B. Kanarek, Asst. Public Defender, Vero Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Judge.

By petition for writ of habeas corpus the petitioner, F.S.N., a juvenile, is contesting the authority of the state to prosecute him as an adult.

On March 26, 1980, the state filed a petition in the juvenile division of the circuit court of Indian River County charging the petitioner, F.S.N., a seventeen year old, with petit theft. On April 1, the petitioner, joined by his mother, filed a motion seeking the transfer of his case to the county court for disposition as an adult pursuant to Section 39.02(5)(b), Florida Statutes (1979). The following day an order was entered granting the motion and transferring the case to county court. On April 14, 1980, petitioner was adjudged guilty and placed on probation.

On April 22, 1980, petitioner was arrested on the unrelated charge of burglary of a dwelling. Bond was set in the amount of $10,000.00 and following a finding of indi-gency made by the committing magistrate at first appearance, the office of the public defender was appointed to represent the petitioner.

A motion was then filed by petitioner seeking his transfer to the custody of juvenile authorities. The trial court denied the motion based on the provisions of Section 39.02(5)(d), Florida Statutes (1979), and its finding that the petitioner, by voluntarily submitting himself to the adult division of the county court on the previous petit theft charge, had relinquished his right to be treated as a juvenile for further violations of Florida law.

Section 39.02(5)(d) provides:

Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information and has been found to have committed the offense for which he is transferred or a lesser-included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law.

While the petitioner’s previous adjudication for petit theft arose following his transfer from the juvenile division to the adult division of the county court, the transfer was not effectuated through the device of a waiver hearing pursuant to Section 39.02(5)(a), nor by the filing of an information under Section 39.04(2)(e), (4), nor by the return of an indictment under Section 39.02(5)(c). The respondent nevertheless contends that Section 39.02(5)(d) applies to all prior transfers.

This court recently had occasion to deal with similar arguments by the state in Robidoux v. Coker, 383 So.2d 719 (Fla. 4th DCA 1980). In that case we issued a writ prohibiting the adult division from exercising jurisdiction over a juvenile with regard to two counts of an indictment which, by a separate count, had also charged the juvenile with an offense punishable by death or life imprisonment. As to the latter offense the return of the indictment automatically subjected the juvenile to treatment as an adult. In Robidoux we noted that Chapter 39 vests exclusive original jurisdiction of juveniles in the juvenile division of the circuit court, and that adult treatment of juveniles is limited to the specific exceptions contained therein. We also held that we felt obligated, under the legislative scheme set out in Chapter 39, to strictly construe the exceptions set out therein. Such observations are equally applicable here.

Initially, we note that the legislature has not provided that any transfers would suffice to allow for the treatment of a juvenile as an adult in subsequent prosecutions. Rather, the legislature has specifically enumerated the methods of transfer that would authorize subsequent adult treatment.

More importantly, we believe it was the intent of the legislature to limit the treatment of children as adults for subsequent violations to those situations in which the prosecutor, the grand jury, or the court has made an independent determination that the child should be treated as an adult for purposes of criminal prosecution. The decision to transfer “pursuant to a waiver hearing, indictment, or information” is in essence a determination by the appropriate authority that society will best be served by treating the child as an adult. The legislature has then provided in Section 39.02(5)(d) that once such a determination is made, further violations by the child should also be prosecuted in the adult division.

On the other hand, a transfer obtained by the juvenile under Section 39.02(5)(b) does not involve a determination that it is in the best interests of society to treat the child as an adult. Under Section 39.02(5)(b) it is really the child and his parents that decide whether the child will be tried as a juvenile or an adult. For these reasons, we believe that the legislature intended that Section 39.02(5)(d) should apply only to cases where transfers had specifically been authorized by “waiver hearing, indictment, or information” and not to cases where transfers were voluntarily obtained by the juvenile.

Accordingly, the petition for writ of ha-beas corpus is hereby granted and petitioner is ordered discharged from the custody of the Sheriff of Indian River County, his custody to be transferred to the Department of Health and Rehabilitative Services.

BERANEK, J., concurs.

LETTS, C. J., concurring specially with opinion.

LETTS, Chief Judge,

concurring specially:

I concur with the majority in the result and agree that the applicable statutes do not appear to cover voluntary transfers. However, I think that is probably a legislative oversight rather than anything else.

The majority makes no mention of the fact that the initial crime here was only a misdemeanor whereas Section 39.02(5)(d) appears by its language to be contemplating felonies. However, this omission is not harmful to the result in the case at bar. On the contrary if the provision prohibiting transfers back to the juvenile division is only contemplating felonies, then a return to the juvenile division in the case now before us does no violence to Section 39.-02(5)(d).

      . Section 39.02(5)(b), Florida Statutes (1979) provides that “the court shall transfer and certify the case for trial as if the child were an adult if the child is alleged to have committed a violation of law, and prior to the commencement of an adjudicatory hearing, the child, joined by a parent or, in the absence of a parent, by his guardian or guardian ad litem, demands in writing to be tried as an adult.”


author: PER CURIAM. BOOTH, Judge,

text:
    AGRICO CHEMICAL COMPANY and Underwriters Adjusting Company, Appellants, v. Garlie Lincoln LAWS, Appellee.
    No. RR-57.
    District Court of Appeal of Florida, First District.
    June 9, 1980.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellants.
    W. James Kelly, of Philpot & Kelly, P. A., Lakeland, for appellee.
   PER CURIAM.

The claimant, a 39-year-old flagman, was unable to straighten his back after bending down to couple railroad cars. His condition was diagnosed as a preexisting asymptomatic stenosis of the spinal canal, aggravated by a pinched nerve. Dr. Pfaff testified that the pinched nerve was secondary to the stenosis, caused no additional weakness in the back and made the claimant no more prone to back problems in the future than he had been prior to the accident. The doctor, nevertheless, rated the claimant as 5% permanently partially disabled based upon the following rationale:

I took into consideration the fact that he had an episode of back pain with rather severe involvement to the nerve without permanent damage and I advised him against returning to heavy manual labor such as a flagman, because this is going t‘o put him in the position to reinjure his back and in that situation he might even precipitate a true herniated nucleus pul-posus, and that was taken into consideration. Also taken into consideration was the fact that he had no major nerve damage as yet. He does have a chronic back condition and I rated him, because I thought he was limited in that field of endeavor.

The carrier voluntarily paid the 5% disability opined by Dr. Pfaff and the claimant made claim for permanent partial disability in excess of 5%. The JIC awarded 40% permanent partial disability of the body as a whole based on loss of wage earning capacity. Nowhere in the order is there a finding by the judge that the claimant sustained any permanent anatomical impairment. Without such a finding there can be no award for loss of wage earning capacity. Arcuri v. Morgan-Oswood Associates, IRC Order 2-3207 (July 28, 1977); Cohen-Ager, Inc. v. Pierce, IRC Order 2-3173 (June 2, 1977); Owens v. John F. Kennedy Memorial Hospital, 7 F.C.R. 217 (1972). This fact-finding function is exclusively within the domain of the Judge of Industrial Claims and cannot be delegated to the treating physician. Cook v. Hamilton County Board of County Commissioners, IRC Order 2-2984 (June 16, 1976). The order is accordingly reversed as to the issues raised by appellants in Points 1 and 2 and remanded to the JIC with directions that he reconsider his order in light of his opinion.

As to the issue raised by Point 3, the employer’s contribution to medical insurance premiums is of a present-day economic value to the claimant and was properly included in the computation of average weekly wage. Cf. City of St. Petersburg v. Johnson, IRC Order 2-3483 (July 21, 1978), cert. denied, 368 So.2d 1364 (Fla. 1979); Sunland Training Center v. Thomas, IRC Order 2-3917 (Sept. 19, 1979).

Our reversal of the order on Points 1 and 2 necessarily impacts upon the award of fees. The award of attorney’s fees is reversed and remanded for reconsideration.

SHAW, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla.1st DCA 1979).