text:
    Robert K. CALL, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-105.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Rehearing Denied Nov. 9, 1982.
    Robert K. Call, pro se.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Call appeals the establishment of his presumptive parole release date. This appeal is taken following Call’s biennial reinter-view, Section 947.174, Florida Statutes (1981). We affirm.

The issues raised by Call are not available at this time, Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla. 1st DCA 1982).

ERVIN and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF RISK MANAGEMENT and State of Florida, Appellants, v. Evelyn McBRIDE, Appellee.
    No. AH-157.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Rehearing Granted Nov. 9, 1982.
    Patrick J. Malone, of Brennan, McAliley, Hayskar, McAliley & Jefferson, West Palm Beach, for appellants.
    Harry Goodmark, of Goodmark & Good-mark, West Palm Beach, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order contending, among other issues, that the deputy erred in denying an offset against compensation for pension benefits which claimant is receiving. We conclude that the deputy did not err and we affirm the order appealed.

In Hoagey v. Jewel T. Co. Inc., 235 So.2d 289 (Fla.1970), the Florida Supreme Court ruled that a claimant is entitled to full workers’ compensation benefits in addition to any benefits under an insurance plan to which the claimant contributed. The court reasoned that a contrary holding would violate § 440.21, Florida Statutes, which provides that:

No agreement by an employee ... to contribute to a benefit fund . .. for the purpose of providing compensation ... as required by this Chapter shall be valid

Subsequently, in Brown v. S.S. Kressge Co. Inc., 305 So.2d 191 (Fla.1975), the court determined that monies received by a claimant from a non-contributory insurance plan should be credited against workers’ compensation benefits only to the extent that the combined monies exceed a claimant’s average weekly wage. The rulings in Hoagey and Brown effectively synthesize the interplay between § 440.21 and § 440.20(15), which provides that:

When an employee is injured and the employer pays his full wages or ány part thereof during the period of disability . . . the employer shall be entitled to reimbursement to the extent of the compensation paid or awarded .. . provided the employer furnishes satisfactory proof to the judge of such payment ....

Thereafter, in Domutz v. Southern Bell Telephone & Telegraph Co., 339 So.2d 636 (Fla.1976), the court reaffirmed its position and stated that in Brown “the decisive factor was ... whether the combination of benefits from the employer exceeded the claimant’s average weekly wage.” In the Domutz case the court ruled that no offset would be allowed for pension benefits where the combined pension and compensation monies did not exceed a claimant’s average weekly wage; the court expressly noted that it was not determining whether an offset should be allowed for pension (as opposed to insurance) benefits when the combined monies do exceed a claimant’s average weekly wage.

Likewise, in the present case we do not consider whether the § 440.20(15) offset applies upon the payment of pension benefits. The record in this case establishes neither whether the pension plan is contributory or noncontributory, nor the amount of any employee contribution which might have been made. Proving entitlement to an offset is the burden of the party seeking such offset; employer/carrier has failed to carry its burden in this case, and the deputy did not err in denying the claimed offset.

The order appealed is affirmed.

BOOTH and WIGGINTON, JJ., concur.


author: ERVIN, Judge.

text:
    AMERADA HESS CORPORATION, Appellant, v. BELCHER OIL COMPANY and Jacksonville Electric Authority, Appellee.
    No. AO-1.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1982.
    James M. McLean and Robert T. Hyde, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    William L. Durden, John F. MacLennan and Alison D. Kennedy of Kent, Watts, Durden, Kent & Mickler, Jacksonville, and Don C. Nelson, Miami, for appellee Belcher Oil Co.
    Roger J. Waybright, Jacksonville, for ap-pellee Jacksonville Elec. Authority.
   ERVIN, Judge.

We have carefully reviewed the records and briefs in this case. There is substantial competent evidence to support the lower court’s determination: (1) that appellant Amerada Hess and appellee Jacksonville Electric Authority (JEA) engaged in improper and unlawful negotiations regarding Hess’ bid to supply residual fuel oil, and (2) that Hess’ bid was materially non-conforming to paragraphs 2.13, 3.08 and 3.13 of the JEA bid specifications. Therefore, the lower court’s order is affirmed. However, as noted by appellant the order is capable of misinterpretation that could be highly prejudicial to Hess. We clarify the lower court’s final judgment of August 2,1982, by striking the clause “for the contract period specified” located in the second sentence of the decretal portion of the judgment.

MILLS and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    James JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. AG-16.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. Green, 402 So.2d 553 (Fla. 1st DCA 1981).

MILLS, ERVIN and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    James Alan ATCHISON, Appellant, v. STATE of Florida, Appellee.
    No. AI-363.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Michael Allen, Public Defender; David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we find no reversible error.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: THOMPSON, Judge.

text:
    STATE of Florida, Appellant, v. L.D.M., A Child, and R.R.B., A Child, Appellees.
    Nos. AJ-72, AJ-74.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellant.
    Gail A. Adams, Asst. Public Defender, Tallahassee, for appellees.
   THOMPSON, Judge.

The state appeals orders granting the defendants’ motions to suppress. The state contends that there was a reasonable suspicion of criminal activity to justify the investigative stop of defendants’ vehicle shch that the trial court erred in granting the defendants’ motions to suppress tangible evidence seized during the search. We agree and reverse.

In the early morning hours of October 23, 1981, Officer Hillis was patrolling an area he knew to have a high crime rate when he saw a Volkswagen station wagon, with its headlights off, stopped on a road behind Major’s Auto Salvage Company (Major’s), a business which he knew had been burglarized several times in the past year. As Officer Hillis approached the parked car, it proceeded toward and passed the police cruiser at a distance of a few feet and he was able to see huge truck tires stacked in the rear of the station wagon. Although Officer Hillis did not specifically indicate that he knew tires of the type he saw in the station wagon had been previously stolen from Major’s, he did know that tires had been previously stolen from Major’s and he had seen similar tires at Major’s. When Officer Hillis attempted to stop the station wagon near where he first observed the car, it apparently stopped on its own accord. We find that under these circumstances Officer Hillis had a well-founded and articula-ble suspicion that the occupants of the station wagon were engaged in criminal activity. The stop and investigatory detention were therefore justified. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980), cert. denied, 398 So.2d 1352 (Fla.1981); State v. Merklein, 388 So.2d 218 (Fla. 2d DCA 1980), pet. for rev. den., 392 So.2d 1377 (Fla.1981). When Officer Hillis’ prompt investigation at Major’s revealed that the tires in the rear of the station wagon had been stolen from Major’s, Officer Hillis was then justified in searching the car and seizing the tires and other stolen articles found in the car. Accordingly, we reverse the trial court’s orders suppressing the evidence and remand for further proceedings consistent with this opinion.

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


text:
    The COCA-COLA COMPANY—FOODS DIVISION and General Accident Group, Appellants, v. Willie LONG, Appellee.
    No. AJ-431.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Jesse F. Sparks of Jesse F. Sparks, P.A., Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney, Adler & Hammond, P.A., Orlando, for ap-pellee.
   MILLS, Judge.

The employer/carrier appeal a workers’ compensation order awarding claimant attendant’s care from 1 March 1977 to 1 March 1978. We affirm.

Claimant is permanently and totally disabled. During the period 1 March 1977 to 1 March 1978, claimant was on crutches, totally without a hip. During this period, claimant’s wife quit her job for six weeks to care for him and, thereafter, continued to care for him six hours daily. She bathed him in bed, changed the bandage on his hip, brought him a urinal and emptied it, helped him dress, drove him, and fed him in bed.

The employer/carrier’s argument that the claim is barred because claimant did not comply with Section 440.13(1), Florida Statutes (1973), is without merit because this defense was not asserted at the hearing on the claim.

Contrary to the employer/carrier’s contention that there is no medical testimony as to claimant’s need for nursing services, there is substantial competent medical and lay testimony that claimant required attendant care.

Lastly, the employer/carrier asserts that the services performed by claimant’s wife were not nursing services and were gratuitously provided by the wife. Not so. The services provided by the wife were compensable services under Section 440.13, Florida Statutes (1973). Pan American World Airlines, Inc. v. Weaver, 226 So.2d 801 (Fla.1969) and Nezelek v. Terlizzese, 9 FCR 328, IRC Order 2-2869 (1975).

Having affirmed the deputy’s order on the merits, we affirm the attorney’s fee award to claimant’s attorney because the only argument made by the employer/carrier is that because the order was erroneous, the fee was erroneous.

AFFIRMED.

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


text:
    Ronald Wayne BRADBURY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-376.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    John D. Middleton of Middleton & Giant, Gainesville, for appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Bradbury appeals the establishment of his presumptive parole release date, contending that the Commission erred in calculating his salient factor score. We affirm.

Specifically, Bradbury maintains that the Commission acted improperly in using a post-sentence report and a pre-parole investigation in order to establish various prior convictions. We disagree. Jones v. Florida Parole and Probation Commission, 413 So.2d 861 (Fla. 1st DCA 1982).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    Horace WRIGHT, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-57.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Horace Wright, pro se, appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

On 24 November 1975, Wright committed the crime for which he was later convicted. He was sentenced on 12 January 1981, and, after his initial interview on 6 January 1982, the Commission applied the matrix time ranges which came into effect on 1 September 1981 in order to establish his presumptive parole release date (PPRD).

Wright now asserts that application of these new ranges violates the ex post facto clauses of the state and federal constitutions. We disagree. Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). Contrary to Wright’s contentions, we do not find Lopez distinguishable. Just as in Lopez, Wright committed his crime at a time when parole was within the discretion of the Commission. Section 947.16, Florida Statutes (1975). Therefore, there is no ex post facto violation in using the guidelines in effect on the date of the interview.

Wright’s contention that the Commission usurped judicial intent in setting his PPRD is likewise without merit. Holston v. Florida Parole and Probation Commission, 394 So.2d 1110 (Fla. 1st DCA 1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    Charlie GRANT, Appellant, v. STATE of Florida, Appellee.
    No. AL-93.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Grant appeals from his conviction, after a jury trial, of the crime of burglary of a dwelling with intent to commit a theft. § 810.02(3), Fla.Stat. (1980). He urges that the trial court erred when, in instructing the jury as to the elements of theft, it failed to make the requisite charge of intent to permanently deprive the owner of his property. We disagree.

In support of his argument Grant cites Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981), Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), and Hilty v. State, 386 So.2d 1236 (Fla.2d DCA 1980). These cases, however, hold only that specific intent to permanently deprive an owner of property is an element of theft as defined in section 812.014, Florida Statutes (1981). Green v. State, 414 So.2d 1171, 1172 (Fla. 5th DCA 1982). They do not mandate that specific intent to permanently deprive an owner must be charged when instructing as to burglary or any other crime with an underlying crime of theft.

We decline to extend the rationale of these cases to Grant’s situation. Rather, we find this appeal more appropriately governed by Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980). In Taylor, the state sought to prove the charge of felony murder by proving that the victim’s death occurred during the felony of robbery. The defendant contended that the instruction was deficient because it failed to inform the jury that intent to permanently deprive another of property is an essential element of the charge of robbery. The Third District Court of Appeal rejected this argument, holding:

The elements of the underlying felony . . . need not be explained with the same particularity that would be required if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial.

Id., at 829. There, the underlying robbery charged omitted any mention of specific intent and tracked the statutory language for robbery. Similarly, while the instruction in this case fails to charge intent to permanently deprive the victim of his property, the trial court’s instruction tracked the statutory language for theft, section 812.014(1):

Now, theft is defined as follows: That the defendant, Charles Grant, knowingly and lawfully used, obtained, or endeavored to obtain or endeavored to use the property of (the victim); And that he did so 'with the intent to deprive_ (the victim) of his right to the property or any benefit from it or to appropriate the property of (the victim) to his own use or to the use of any person not entitled to it. (Emphasis supplied).

We conclude that the underscored phrase charges the underlying crime of theft with sufficient particularity to insure the defendant a fair trial.

AFFIRMED.

McCORD, BOOTH and WENTWORTH, JJ., concur.


text:
    Truman S. STEPHENS, Appellant, v. SOUTHERN FURNITURE TRANSPORTS, INC. and Liberty Mutual Insurance Company, Appellee.
    No. AL-337.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Steven Burrage of Robert D. Melton, P.A., Orlando, for appellant.
    Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   MILLS, Judge.

Stephens, claimant in this workers’ compensation case, files this petition for writ of certiorari, alleging that the deputy commissioner erred when, without a prior hearing, he signed an order compelling discovery of Stephens’ 1980 income tax return. The petition is granted. We set aside the order of the deputy commissioner and remand for compliance with Rules 1.350 and 1.380, Florida Rules of Civil Procedure.

On 1 March 1982, the employer/carrier filed with the deputy commissioner a motion to produce and an application for a hearing on that motion. The motion to produce requested discovery of Stephens’ 1980 income tax return within thirty days. A copy of the motion was sent to Stephens. However, before the thirty-day period had expired, the employer/carrier sent to the deputy commissioner a proposed order compelling discovery of the tax return. This order the deputy commissioner signed with no hearing and with no notice to Stephens.

Pursuant to Section 440.33(1), Florida Statutes (1981), the deputy commissioner has the authority to “compel ... the production of books, papers, documents, and other evidence . ... ” We hold that in exercising this authority, the deputy commissioner must comply with the Florida Rules of Civil Procedure.

In an ordinary civil case, discovery is usually conducted by the parties without need for court intervention. Thus, Rule 1.350, Florida Rules of Civil Procedure, allows the discovering party to request the production of documents from the other party. Under that rule, the party to whom the request is directed has thirty days to respond. Any response must state either that inspection and related activities will be permitted as requested, or it must state the reasons for objection to inspection, if any. If one party refuses or objects to discovery, then the discovering party may move to compel discovery pursuant to Rule 1.380, Florida Rules of Civil Procedure.

In this case, Stephens was never given an opportunity to present any objections to the employer/carrier’s motion to produce. The deputy commissioner signed the order before the thirty-day period had expired and he did so without any notice to Stephens. On remand, Stephens should be allowed to show why discovery of his 1980 tax return should not be permitted.

Reversed and remanded.

ERVIN and WIGGINTON, JJ., concur.


text:
    Johnny R. HENRY, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Appellee.
    No. AO-226.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Johnny R. Henry, pro se.
    Michael Minerva, Gen. Counsel, Dept, of Corrections, Tallahassee, for appellee.
   PER CURIAM.

. The petition for writ of mandamus is treated as a notice of appeal and appellant’s initial brief. The agency’s order of August 30, 1982, is AFFIRMED.

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Johnny Lee FUTCH, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-782.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Johnny Lee Futch, in pro. per.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from a summary denial of a motion claiming ineffective assistance of appellate counsel in connection with the affirmance of the prisoner’s judgment and sentence. Futch v. State, 399 So.2d 533 (Fla.3d DCA 1981).

A claim of ineffective assistance of appellate counsel is properly raised by habe-as corpus before the appellate court which affirmed the judgment of conviction. Knight v. State, 394 So.2d 997, 999 (Fla.1981). Consequently, the trial court had no authority to consider the claims and properly denied the defendant’s motion. Knight v. State, supra. Because the record affirmatively demonstrates that the petitioner is confined to the state penitentiary at Rai-ford, we would not ordinarily have territorial jurisdiction of his application for habeas corpus. Art. V, § 4(b)(3), Fla.Const. Nonetheless, we find that the court, in Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), construing an identical provision of the 1968 constitution observed:

[WJhere habeas corpus relief is sought to vindicate deprivations of the right to appeal, or necessary incidents thereof, the ultimate relief afforded is the opportunity for full appellate review by way of habeas corpus in the district court of appeal (except in situations where the jurisdiction of an appeal lies in the Supreme Court pursuant to Section 4(2), Article V, State Constitution) of the district where petitioner was confined at the time of sentencing, the soundest and most expeditious procedure should require the application for a writ challenging such alleged deprivations to be filed in the same district court which is empowered to grant the ultimate relief. This procedure would not only operate to balance out and minimize the judicial labor in proceedings of this kind, but would also create less procedural difficulties. If factual determinations are deemed necessary, the appropriate district court needs merely to issue the writ returnable before a circuit judge of that district or appoint a commissioner to make the necessary factual determinations.

229 So.2d at 244. We consider the above pronouncement sufficiently broad to properly invoke our jurisdiction.

Although the petitioner has appealed from the summary denial of his 3.850 motion, pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the present application as one for habeas corpus.

The petitioner sets forth three errors which he argues his appellate counsel should have presented to this court on appeal. First, the petitioner claims that the trial court erroneously permitted the jurors to separate without proper admonition. This contention is adequately dispelled by the record before us which indicates that the jurors were properly admonished each day. Futch next argues that the trial judge erred in failing to instruct on the lesser included offense of third degree murder and in not reinstructing the jury on excusable homicide. Neither of these errors were properly preserved for appellate review, Castor v. State, 365 So.2d 701 (Fla.1978), and thus, there was no basis upon which appellate counsel could have sought reversal.

Consequently, we deny the petition for habeas corpus.


text:
    A.B.Y. CONSTRUCTION CO., a Florida corporation, Appellant, v. Sid BLAIR, Horace Smith, Jr., Wilburn W. Hickey, etc., A. Oscar Folsom, John M. McCarthy, etc., Appellees.
    No. 81-1551.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1982.
    Michael A. Van Houten, Daytona Beach, for appellant.
    James G. Hahl of Raymond, Wilson, Conway, Barr, Burrows and Jester, Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED. Budget Electric Co. v. Strauss, 417 So.2d 1143 (Fla. 5th DCA 1982).

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., and COWART, JJ., concur.


text:
    Esther R. CLOVIS, Appellant, v. FLORIDA POWER CORPORATION, a corporation, Appellee.
    No. 82-106.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1982.
    William P. O’Malley, Clearwater, for appellant.
    Steven H. Gray, of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellee.
   PER CURIAM.

This case is brought to us as an appeal from a non-final order. We accept jurisdiction by certiorari. Rule 9.040(c), Fla.R. App.P. The order of the trial court assessing a fine, through denominated court costs and requiring payment “into the general fund of Citrus County,” is quashed. The order assessing attorney’s fees or, alternatively, the striking of pleadings and default, is quashed. See Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So.2d 824 (Fla. 2d DCA 1978); Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978); Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978).

This cause is remanded to the trial court for further proceedings.

ORDERS QUASHED.

ORFINGER, C.J., and DAUKSCH and SHARP, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Amado L. PEDROSO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1601.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1982.
   HOBSON, Acting Chief Judge.

Amado L. Pedroso appeals the denial of a Florida Rule of Criminal Procedure 3.850 motion. We affirm.

In January 1980 a trial judge adjudicated appellant guilty of armed robbery and sentenced him to thirty years imprisonment, retaining jurisdiction over the first third of the sentence. Appellant appealed the conviction, but not the sentence, and we affirmed without a written opinion. Pedroso v. State, 386 So.2d 647 (Fla. 2d DCA 1980). In May 1982 he filed a Rule 3.850 motion alleging that the trial judge did not state the reasons for retaining jurisdiction with individual particularity as required by section 947.16(3)(a), Florida Statutes (1979). The judge summarily denied the motion.

A Rule 3.850 motion is not a substitute for a direct appeal. Raulerson v. State, 420 So.2d 567, at 569 (Fla. Aug. 26, 1982). In other words, where issues raised on a Rule 3.850 motion could have been or were raised on a direct appeal, denial of the motion is proper. Id.; Meeks v. State, 382 So.2d 673, 675 (Fla.1980). Appellant could have raised the retention of jurisdiction issue on direct appeal. Thus, the issue is not now cognizable for collateral attack.

We respectfully disagree with our sister court’s decision in Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981), dismissing a direct appeal alleging improper retention of jurisdiction without prejudice to raise the issue on a Rule 3.850 motion.

Accordingly, the trial judge’s denial of the Rule 3.850 motion is AFFIRMED.

BOARDMAN and DANAHY, JJ., concur.


text:
    Smiley Vincent KEENE, Appellant, v. STATE of Florida, Appellee.
    Nos. AE-473, AE-488.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.

      Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Keene contends in these consolidated appeals that the lower court erred in forcing him to proceed to trial pro se when there is no unequivocal rejection of counsel. We agree with the contention raised, reverse the convictions and remand the cases for new trials.

At arraignment, the trial court declared appellant indigent and appointed the public defender to represent him. Kenneth T. Connor of the Public Defender’s Office was assigned to handle the cases. Prior to trial, Mr. Connor filed a motion to withdraw as counsel for appellant on the following grounds:

Defendant KEENE insisted on January 27, 1981 that he did not want the Public Defender to represent him. He further professed to have sufficient knowledge of the law that the undersigned understood that KEENE would rather represent himself than have the Public Defender act as his counsel.

At the hearing on the motion to withdraw, appellant stated: “[W]hat .. . [Connor] filed in the motion is a lie. I did not tell this man I did not want representation from the Public Defender’s Office — only him — because he lied to me .... As far as anybody else from the Public Defender’s Office I will accept. But I won’t accept Mr. Connors (sic).” Appellant further elaborated upon this statement in the following colloquy:

THE DEFENDANT: I have already made it understood, I thought, that I do not want Mr. Connors (sic) to represent me in a court of law.
THE COURT: Do you not want him to represent you, knowing that you probably would have no other attorney appointed to represent you?
THE DEFENDANT: I could care less.
THE COURT: You are willing to give up that right, to have assistance of counsel?
THE DEFENDANT: I’m not giving up the right to have assistance of counsel. I am giving up the right to have Mr. Connors (sic). I don’t want Mr. Connors (sic) on my case.
THE COURT: You don’t want him under any circumstances?
THE DEFENDANT: No, sir.
THE COURT: And knowing that I probably would not appoint another attorney to represent you, if I relieve Mr. Connor of any further obligation?
THE DEFENDANT: Then I will have to take my chances on my own.
THE COURT: But you understand that I probably would not appoint another attorney, if I relieve Mr. Connor?
THE DEFENDANT: I understand what you are saying, yes, sir.

The court went on to inquire as to appellant’s education, legal experience, prior incarceration, history of mental illness, etc., i.e. the factors required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which are used to determine whether a defendant freely and voluntarily waived his right to counsel. The record of the hearing reflects, among other things, that the defendant had been twice civilly committed to a state mental institution. At the conclusion of the hearing the court granted Connor’s motion to withdraw and declined to appoint other counsel, thereby requiring appellant to defend himself at two separate trials, first on an information charging him with grand theft and uttering a forged instrument; next on charges of burglary of a dwelling and two counts of dealing in stolen property. He was found guilty of the offenses for which he was first tried, and later found guilty of the two counts of dealing in stolen property, but not guilty as to the burglary count. He ultimately received a sentence totaling 40 years.

At the commencement of the appellant’s trial for burglary and dealing in stolen property, appellant reaffirmed that he had not waived his right to counsel: “I would still like to say that the defense is ready, with the knowledge and the facts that the court records show that I am being forced by the court to defend myself in this case.” Later at the June 22, 1981 hearing on motion for new trial and sentencing, appellant was represented by Assistant Public Defender William R. Slaughter, II. There appellant said:

[T]hat I have never refused the help of anyone other than Mr. Connor in the Public Defender’s Office. I would have accepted counsel, anybody from the Public Defender’s Office, except Mr. Connor, because he had lied ....
* * * * * *
I have not asked the Court to give me a lawyer of my choice. I just simply stated anybody else from the Public Defender’s Office besides Mr. Connor. That was my request from the first day I came in here. I will accept anybody but Mr. Connor. I realize that the Court does not have to appoint me a lawyer of my choice, but I do realize that it’s binding on the Court to see that I had a lawyer and a fair trial, which this Court didn’t do.

There is no question that a defendant has the right to represent himself. Faretta v. California; Goode v. State, 365 So.2d 381, 388 (Fla.1979), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979); State v. Cappetta, 216 So.2d 749 (Fla.1968), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969). Never theless, Faretta places the duty on the trial court, upon receiving a timely motion to proceed pro se, to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self-representation. Thereafter the trial court must determine whether defendant has made his choice voluntarily and intelligently. We have further held that the trial court should determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries, such as the accused’s age, mental derangement, lack of knowledge, education, or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel. Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982). See Robinson v. State, 368 So.2d 674, 675 (Fla. 1st DCA 1979), Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978).

Unlike Cappetta and similar Florida cases where the defendants affirmatively moved to proceed pro se, or argued that the court denied them their right to self-representation, the appellant in the case below never asserted that he wished to represent himself. Federal cases following Faretta hold that Faretta requires that a defendant’s request to proceed pro se be clear and unequivocal. See, e.g., U.S. v. Bennett, 539 F.2d 45 (10th Cir.1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); U.S. v. Montgomery, 529 F.2d 1404 (10th Cir.1976), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976). In State v. Cappetta, the Florida Supreme Court approved the general rule stated in Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), that in the absence of unusual circumstances, an accused who is mentally competent has the right to conduct his own defense without counsel. The district court, however, stated that in order “[t]o invoke this right the criminal defendant must make an unequivocal request to act as his own lawyer. Such request must be made prior to the commencement of trial.” Id. at 918.

Accordingly, since the record fails to show that appellant clearly and unequivocally waived his right to counsel, the convictions in these appeals are reversed and the cases are remanded for new trials.

SHIVERS and WENTWORTH, JJ., concur.


text:
    BREVARD COUNTY MENTAL HEALTH CENTER and St. Paul Fire & Marine Insurance Company, Appellants, v. Marlene KELLY, Appellee.
    No. AK-123.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Rehearing Denied Nov. 5, 1982.

      C. Anthony Schoder, Jr. of Smith, Scho-der & Rouse, Daytona Beach, for appellants.
    Catherine A. Riley of Blumenthal, Schwartz & Riley, Titusville, for appellee.
   MILLS, Judge.

The employer/carrier appeal the final order of the deputy commissioner awarding temporary total disability benefits and attorney’s fees to claimant Kelly.

The employer/carrier raises the following issues:

I. Whether the deputy commissioner erred in finding that the claimant sustained “an accident” within the meaning of the act.

II. Whether the deputy commissioner erred in finding that claimant was temporarily totally disabled from July 3, 1980, through July 10, 1980.

III. Whether the deputy commissioner erred in awarding an attorney’s fee which is out of proportion to the benefits secured.

IV. Whether the deputy commissioner erred in finding that the employer/carrier acted in “bad faith.”

Claimant worked for Brevard County Mental Health Center for seven years as a medical records clerk. On the weekend of June 14-15, 1980, the employer’s premises were recarpeted and the buildings were left closed without benefit of air conditioning. On Monday morning, June 16, when the claimant and other record employees arrived for work, the odor from the new carpet was so strong and offensive that normal breathing of the stale air caused the employees to have allergic reactions and varying degrees of discomfort.

The employer attempted to alleviate the problem by opening the doors and windows and allowing the employees to take frequent breaks outside the building. The following week, June 23-27, the odor began to dissipate but employees still took occasional breaks outside the building.

The claimant worked June 23, 24, and 25, but her symptoms persisted and she took off June 26 and 27. The claimant’s condition improved over the weekend and she returned to work on Monday, June 30. During the week of June 30 the claimant worked Monday, Tuesday, and Wednesday, but again her symptoms persisted when she was around the carpet, and she did not return to work on Thursday, July 3.

During this third week following the carpet installation, the problem with regard to other employees had abated to the point that employees were no longer going outside the building to take breaks. It was during this third week that the employer asked Kelly to see an allergist. An appointment was scheduled with Dr. Leifer on July 10. Kelly did not return to work the week of July 7. By the time she saw Dr. Leifer on July 10, she was feeling well and had no symptoms. Dr. Leifer diagnosed claimant’s condition as an allergic, chemical irritant reaction to some unknown ingredient in the carpet. The doctor prescribed various medications for claimant and instructed her to return to work to determine whether the medications would successfully alleviate her problems.

Kelly returned to work on Monday, July 14. On July 15 Kelly left after working six hours, complaining that her medications had not blocked her symptoms. She did not return thereafter. By July 17 the employer had received the allergist’s report indicating that the claimant was to return to work and, if necessary, her primary work location might need to be relocated to avoid proximity to the new carpet. Kelly was advised that if she did not return to work on July 18 she would be suspended. When she failed to respond on the 18th, she was advised that if she did not come in to make arrangements for an alternative work location, she would be terminated on July 24. Kelly was contacted by her employer on July 21, but on the advice of her lawyer she refused to return. Kelly was terminated on July 24, 1980.

ISSUE I:

Although this case is novel on its facts, there is support for a finding of com-pensable accident based on a theory of exposure as defined by Festa v. Teleflex, 382 So.2d 122 (Fla. 1st DCA 1980). An analogous case comes from Mississippi. Hardin’s Bakeries v. Ranager, 64 So.2d 705 (Miss.1953). There, a baker was allergic to a mitten he was required to use in handling hot pans of bread. The court held the baker was disabled from an accidental injury resulting from his exposure. This ease is cited in the Florida case of Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla.1957), where a compensable accident was found under the exposure theory when a roofer subject to constant inhalation of dust and fumes developed acceleration or aggravation of his pre-existing tubercular condition. The Czepial case was in turn favorably cited in Festa. Using the Festa three-pronged test, the only element not clearly present is “prolonged” exposure. Even though the ten-day exposure period is relatively short when compared to the factual situation in other Florida exposure cases, it was prolonged enough to precipitate the claimant’s physical problems. This factual situation involved a series of occurrences, the cumulative effect of which is injury. This is an alternative definition of accident under an exposure theory as defined by Festa. Affirmed.

ISSUE II:

The employer/carrier’s argument is without merit. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981), and the other cases cited by the employer/carrier stand only for the proposition that an award of temporary total disability must be based either on medical evidence or on evidence of conscientious effort to return to work. In this case there is competent substantial evidence of both. The fact that Dr. Leifer’s diagnosis was based on the history provided by claimant should not render it incompetent. Assuming that Dr. Leifer’s testimony was insufficient, claimant made a conscientious effort to return to work on two occasions. The employer/carrier would have claimant purposefully and continuously expose herself to the very environment which caused her injury in order to be eligible for temporary total disability benefits. Affirmed.

ISSUE III:

The attorney’s fee awarded in this case is grossly out of proportion with the schedule established by Section 440.34, Florida Statutes (1979). Although the deputy commissioner may depart from this schedule under circumstances enumerated in the statute, the order must reflect that he considered all of the relevant, prescribed factors to the extent that circumstances permit. In this case the deputy commissioner appears to have based his determination solely on the number of hours expended by claimant’s attorney. A similar situation resulted in reversal and remand in the case of Roundtree Transport, Inc. v. Godek, 412 So.2d 66 (Fla. 1st DCA 1982), which found the articulated reasons given by the deputy commissioner insufficient to justify the disparity between the statutory fee and the awarded fee. This would be especially true in the case at bar. Here, claimant’s attorney testified that her noncontingeney fee was normally $60 per hour, and yet her award was on the basis of $100 per hour. Also, the expert witness at the attorney’s fee hearing based his figure partially on the alleged bad faith of the employer/carrier in this ease. There is no such criteria listed in the statute. Reversed and remanded to the deputy commissioner for a determination of a reasonable attorney’s fee under the criteria of the statute.

ISSUE IV:

The issue of the employer/carrier’s bad faith was not specifically asserted in the parties’ stipulation of the issues; nor was it specifically asserted at the outset of the hearing, nor was it specifically asserted during the hearing; nor did the deputy’s order explain the bad faith he found. There being no contention of bad faith nor meaningful hearing on this issue, the attorney’s fee awarded claimant on this basis is error. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DC A 1981). However, there is competent substantial evidence to support the award on the basis of Section 440.34(3)(c), Florida Statutes. Affirmed.

Affirmed in part and reversed in part.

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


text:
    Patricia Genz CRUICKSHANK, Appellant, v. John P. CRUICKSHANK, Appellee.
    No. AK-162.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.

      T. Patterson Maney, Fort Walton Beach, for appellant.
    Stephen S. Poche of Cotton, Wesley & Poche, Shalimar, for appellee.
   MILLS, Judge.

The wife appeals a final judgment dissolving the marriage between the parties. She contends the husband did not meet the statutory residency requirements; the trial court erred in not dismissing the action because the wife had a prior action for legal separation pending in Illinois; and the trial court erred by failing to order marital counseling where the wife contested the marriage was irretrievably broken. We affirm.

The husband is a colonel in the United States Air Force. The parties were married in Boston, Massachusetts, in 1961. In 1966, the husband was assigned to Eglin Air Force Base in Okaloosa County. The parties purchased a home in Fort Walton Beach, and the husband registered to vote, registered the family car in Florida, and opened an account with the Eglin Federal Credit Union. The husband still owns the home in Fort Walton Beach, votes in Oka-loosa County by absentee ballot, drives on a Florida driver’s license, and maintains the account at the Eglin Credit Union. In 1971, the husband was assigned to Scott Air Force Base in Illinois where the parties also bought a home. In March 1982, the husband was assigned to Texas but Mrs. Cruickshank remained in Illinois.

In July 1981, the wife filed for legal separation in Illinois. The husband was personally served and answered. In August 1981, the husband filed for dissolution of marriage in Okaloosa County alleging his residency there. The wife filed a motion to dismiss the Florida action alleging that the husband had not met Florida’s residency requirement, that Florida was an inconvenient forum, and asserting that the parties were already litigating in Illinois, which was denied. The wife also filed a motion for court-ordered counseling which was denied.

The test of residency is physical presence in Florida and the concurrent intent to be a permanent resident. Bloomfield v. City of St. Petersburg Beach, 82 So.2d 364 (Fla.1955). The husband was physically present in Florida from 1966 to 1971. Coupled with the facts set forth above showing intent to be a permanent resident, the trial court properly held that the husband met the statutory residency requirements. See Jeffries v. Jeffries, 133 So.2d 751 (Fla. 3d DCA 1961), and Sheppard v. Sheppard, 286 So.2d 37 (Fla. 1st DCA 1973).

The application of the doctrine of forum non conveniens rests within the sound discretion of the court, tempered by the time-honored concept of “the interest of justice.” Houston v. Caldwell, 347 So. 1041 (Fla. 4th DCA 1977). The interest of the litigants must be balanced against each other and unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The husband contends that Florida is the only forum available to him. The wife has not shown otherwise nor shown abuse of discretion on the part of the trial court.

The wife’s contention that the Florida court should have declined jurisdiction in deference to the prior and concurrent jurisdiction of the Illinois court is without merit. Gratz v. Gratz, 188 So. 580 (Fla.1939).

A motion for marriage counseling is within the sound discretion of the court. Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981). The wife has not shown an abuse of discretion.

AFFIRMED.

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


text:
    Charlie Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AK-175.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Brown was convicted of armed robbery and sentenced to an enhanced 90 years imprisonment. The trial court retained jurisdiction over the first 30 years of the sentence. Brown contends that the trial court erred in overruling his objection to a comment made by the State’s attorney during closing argument. We affirm.

During closing argument, Brown’s attorney commented on the failure of the State to call a witness. In response, the State’s attorney stated that Brown had the same right as the State to subpoena the witness. The trial court overruled the objection of Brown’s attorney that the State had the burden of proving Brown guilty.

Brown opened the door to the comment made by the State’s attorney. The State’s response was fair comment. The objection was properly overruled. The trial court subsequently correctly instructed the jury on the State’s burden.

Brown urges that the trial court improperly enhanced the sentence imposed on him. The State agrees. We are compelled to dismiss this issue because there was no objection by Brown to the sentence. However, we dismiss without prejudice to Brown urging this issue by a Rule 3.850 motion. Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981). In view of this disposition, it is unnecessary that we dispose of the other issues raised by Brown.

Affirmed in part and dismissed in part.

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


text:
    Dwayne Henry WOULLARD, Appellant, v. STATE of Florida, Appellee.
    No. AK-401.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant’s judgment of conviction and sentence are AFFIRMED without prejudice to his right to file a motion for post-conviction relief under Fla.R.Cr.P. 3.850 on the ground he did not receive sufficient jail time credit.

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


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

text:
    JESS PARRISH MEMORIAL HOSPITAL and All Risk Corporation of Florida, Appellants, v. Faye M. LAYER, Appellee.
    No. AK-471.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Robert E. Bonner, of Pitts, Eubanks, & Ross, P.A., Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Neither in the application for hearing nor at the hearing itself did claimant’s attorney assert that the carrier’s bad faith handling of the claim was the basis for his claim of attorney’s fees. Consequently there was no forthright assertion of bad faith, nor any meaningful litigation on that subject at the hearing. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033, 1035 (Fla. 1st DCA 1981). The deputy’s barebones finding of bad faith, constructed from a claimant’s deposition introduced not to prove notice and bad faith but for another stated purpose, and the consequent fee award, are therefore REVERSED.

SHIVERS and THOMPSON, JJ., concur.


author: SHIVERS, Judge.

text:
    Michael Ray HOWLAND, Appellant, v. STATE of Florida, Appellee.
    No. AL-20.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Howland appeals the special conditions placed on his probation as well as the legality of his sentence.

Appellant stands convicted of the crime of negligent child abuse in violation of section 827.04(1), Fla.Stat. (1981). The trial court placed appellant on probation for a period of five years on the condition that he serve 364 days in prison. In addition, the court placed the following special conditions on appellant’s probation which prohibited him from:

(1) having any contact with his child, who was the victim in this case;
(2) fathering any other children while on probation; and
(3) residing with any child under 16 years of age while on probation.

Appellant challenges the constitutionality of these conditions on the ground that the State has impermissibly restricted his fundamental rights to marriage, procreation, family relationships and child rearing without showing a compelling State interest in the restrictions. In addition, appellant contends that his placement on probation for a period of five years on the condition that he serve 364 days in prison exceeds the maximum sentence permitted by law.

We find two of the special conditions placed on appellant’s probation to be valid and one to be invalid. Under Florida law, constitutionally protected rights can be abridged by conditions of probation if they are reasonably related to the probationer’s past or future criminality or to the rehabilitative purposes of probation. Grubbs v. State, 373 So.2d 905 (Fla.1979); Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA 1977); Wiggins v. State, 386 So.2d 46 (Fla. 4th DCA 1980). In determining whether a condition of probation is reasonably related to rehabilitation, a condition is invalid if it bears no relationship to the crime for which the probationer was convicted, relates to conduct which is itself not criminal and requires or forbids conduct which is not reasonably related to future criminality. Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979). In this case, appellant was convicted of the crime of negligent child abuse on his infant child. In view of the nature of this offense, we find that the conditions of probation prohibiting appellant from having contact with his child and from residing with a minor child under the age of 16 to be reasonably related to the crime of negligent child abuse and to appellant’s future criminality. On that basis, we uphold the validity of those two conditions.

However, unlike the above conditions we find the condition prohibiting appellant from fathering a child to be invalid. Preliminarily, we note that this prohibition is ambiguous. The phrase “fathering a child” has several different connotations. Webster’s Unabridged Dictionary, 3rd Edition, defines “fathering,” in one sense of the word, to mean the act of making “oneself the father of: Beget,” and, in another sense, the act of “looking after as a father might.” It is clear that depending on the definition ascribed to the word “fathering,” the prohibition in this case could mean that appellant is prohibited from begetting a child or, in the alternative, it could mean that appellant is only prohibited from parenting a child or caring for a child as a father might. Inasmuch as the record does not reveal the meaning which the trial court intended to ascribe to the term “fathering,” we have assumed for the purposes of this appeal that the prohibition was intended to prevent appellant from begetting a child. We find that the condition of probation prohibiting appellant from fathering a child does not reasonably relate to the crime of child abuse and relates to noncriminal conduct. Moreover, we find that although this condition of probation could reasonably relate to future criminality — i.e., child abuse — it could do so only if appellant had custody of the child or was permitted to have contact with the child. In this case, however, those possibilities have already been foreclosed, since appellant is prohibited from having contact with his child or from residing with minor children under the age of 16 by the other valid conditions of probation. See, Rodriguez, supra. Based on the above findings, we hold that the condition of probation prohibiting appellant from fathering a child is invalid and therefore vacate that condition from the conditions placed on appellant’s probation. See, Burchell v. State, 419 So.2d 358 (Fla. 2d DCA 1982).

Concerning the legality of appellant’s sentence, appellant contends and the State concedes that the sentence is illegal. The maximum term of imprisonment for appellant’s crime is five years. See, section 775.082(3)(d), Fla.Stat. (1981). Although the trial judge is authorized to sentence a defendant to a period of incarceration followed by a period of probation, the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged. State v. Holmes, 360 So.2d 380 (Fla.1978). Since the written judgment and sentence in this case reflect a period of incarceration of 364 days followed by a period of probation of five years, the combined periods of incarceration and probation clearly exceed the maximum period of incarceration provided by statute. For that reason, we find appellant’s sentence to be illegal and, therefore, reverse his sentence and remand the matter to the trial court for resentencing.

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


author: WIGGINTON, Judge.

text:
    Fletcher J. HERNDON, Jr., Appellant, v. The ELI WITT CO., Appellee.
    No. AL-158.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.

      Michael F. Coppins, of Douglass, Davey & Cooper, Tallahassee, for appellant.
    Jeffrey H. Abrams, of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is from an interlocutory order of the trial court denying Herndon’s motion to dissolve a temporary restraining order. The court upheld a covenant not to compete contained in a settlement agreement and found that the five-year/three-state prohibition “is not so unreasonable or repugnant as to make it patently offensive.” We affirm.

The covenant at issue forms an integral part of a settlement agreement entered into between Fletcher Herndon and the Eli Witt Company on April 16, 1981. Eli Witt is a Florida corporation engaged in the business of wholesale distribution of tobacco, candy, package goods, sundries, and other items. Herndon was, until his voluntary resignation on March 24, 1981, an employee of Eli Witt. He had been with Eli Witt for twenty-two years, and at the time of his resignation was branch manager for the company in Tallahassee, Florida.

On or about April 1, 1981, following Herndon’s resignation, Eli Witt filed an action against him in the Second Judicial Circuit, in and for Leon County, Florida. Eli Witt alleged that Herndon had “surreptitiously obtained confidential business information and other trade secrets” with the intent to use them in a competing business; that in the course of Herndon’s twenty-two year employment, he had access to Eli Witt’s customer lists, route books, and price lists, and had attempted to convert the company’s trade secrets to his own use; and, finally, that Herndon had revealed confidential corporate information, including financial statements and sales data, to one of Eli Witt’s competitors which was contemplating engaging in business in the Tallahassee area. The complaint prayed for temporary and permanent injunctions against Herndon, and others, from directly or indirectly using the customer lists, route books, and price lists, requiring a return of all confidential corporate information and trade secrets, an accounting for all sums obtained through a breach of Herndon’s fiduciary duty to his employer, and an award of costs and other appropriate relief.

The filing of the complaint initiated a series of conferences between and among Herndon, his codefendants, and Eli Witt corporate officials and corporate counsel. The discussions culminated on April 16, 1981, in the “Agreement” under which Eli Witt voluntarily dismissed its complaint against Herndon. In exchange, Herndon promised: (1) to return to Eli Witt all customer lists, route books, price lists, financial statements, and any other corporate documents; (2) to pay Eli Witt the sum of $800 as and for damages; (3) not to solicit employees of Eli Witt to engage in business with or work with Herndon in any business in competition with Eli Witt; (4) to withdraw a competing application for a wholesale dealer’s license that he had filed with the “Division of Beverage” under a fictitious name; and (5) not to compete with Eli Witt, in specific and unambiguous terms.

Specifically, the covenant not to compete, contained in Paragraph 4 of the agreement, provides:

The Employee shall not, for a period of five years from the date of this Agreement, engage, participate, or become interested, directly or indirectly, and with or without his fault, in any business that is in competition in any manner with that of Employer in the states of Florida, Georgia and Alabama, whether as employer, principal, partner, stockholder, corporate officer, corporate director or in any other individual or representative capacity whatsoever. Should a court of competent jurisdiction determine this paragraph is unreasonable as to either the extent of the geographic area or the time period of five years or both, then the Parties shall abide by a determination of the court as to what is reasonable and, as so amended by the court, this paragraph otherwise shall remain in full force and effect.

The agreement as a whole served to terminate litigation in the case.

It was Herndon’s alleged violation of the above covenant not to compete which spawned the second complaint filed by Eli Witt. In its complaint and amended complaint, Eli Witt alleged irreparable harm if Herndon was not restrained from engaging in business with its competitors, and prayed, inter alia, for temporary and permanent injunctive relief. Shortly after filing its amended complaint, Eli Witt filed an Emergency Motion for Temporary Restraining Order with attached affidavits, asking the court to temporarily enforce the agreement in limited scope, i.e., order Hern-don not to assist Eli Witt’s competitor, without ruling on the geographical and temporal boundaries at that time. The court granted the motion.

Herndon immediately filed a Motion to Dissolve the Temporary Restraining Order which motion was denied. This appeal ensued.

In its order and supplemental order denying Herndon’s Motion to Dissolve, the trial court refused to hold the covenant not to compete void under Section 542.33(1), Florida Statutes (1981) as a contract in restraint of trade, because Herndon and Eli Witt were not in an employer/employee relationship at the time the agreement was signed, a factor which would otherwise bring the agreement within the exception contained in Section 542.33(2)(a). Rather, in rejecting Herndon’s “mechanical application” of Section 542.33(2)(a), the court reasoned that the covenant “emanated” from the employer/employee relationship and was “imbued” with those qualities. Considering the circumstances which led to the agreement, the confidential information obtained by Hern-don over the course of his twenty-two year employment with Eli Witt, and Eli Witt’s voluntary dismissal of the litigation arising from the employer/employee relationship, the court estopped Herndon from claiming the “noncompete clause” void, and determined its geographical and temporal prohibitions to be not so unreasonable as to be patently offensive.

On appeal, Herndon argues that the exclusion set forth in Section 542.33(2)(a) does not contemplate the enforcement of a covenant not to compete when the covenant is entered into after the parties have terminated their employer/employee relationship. We agree. The statutory language in Section 542.33(2)(a) is specific and distinctly excludes from the general prohibition embodied in subsection (1), an agreement entered into between an employer and “one who is employed.” (emphasis added) We can only read the exclusion as intended for an agreement entered into during the course of the employment relationship. However, we do not agree with Herndon that the covenant is therefore necessarily an unenforceable post-employment restraint of trade and competition.

That the instant covenant not to compete works to restrain competition is not disputed. Facially, it would be void under Section 542.33(1). However, this Court has refused to apply 542.33(1) so “mechanically,” without considering the circumstances or the reasonableness of the restriction. Pensacola Associates v. Biggs Sporting Goods Company, 353 So.2d 944 (Fla. 1st DCA 1978), cert. denied, 364 So.2d 881 (Fla.1978). Notwithstanding the broad-brushed effect of 542.33(1), this Court is willing to subject the restraint imposed by the settlement agreement to a “reasonable standard test,” a view which nonetheless comports with the common law philosophy of the statute.

The instant covenant not to compete was ancillary to a valid settlement agreement and provided valuable consideration in return for Eli Witt’s voluntarily dismissing its complaint. Herndon doubtless desired to avoid a lengthy litigation; Eli Witt obviously desired that its business security be protected from one who at liberty could do the company immediate harm should he disclose confidential corporate clients, information and trade secrets. Just as the Massachusetts Supreme Court in the remarkably similar case of Novelty Bias Binding Company v. Shevrin, concluded, we hold, under the circumstances disclosed, considerations of public policy, equity and fair dealing favor enforcement of the covenant if it is otherwise reasonable.

Whether the restraint is reasonable as to time and area under the circumstances of the case is a question of fact. Pensacola Associates, at 948; Damsey v. Mankowitz, 339 So.2d 282 (Fla.3d DCA 1976), cert. denied, 345 So.2d 421 (Fla.1977). Under the circumstances of this case, the restriction is prima facie reasonable and the temporary injunction is not without sufficient basis. The injunction being temporary in character is subject upon final hearing to dissolution or continuance as the facts developed indicate or require. Fountain v. Hudson Cush-N-Foam Corp., 122 So.2d 232 (Fla.3d DCA 1960).

Accordingly, the trial court’s order denying Herndon’s motion to dissolve the temporary restraining order is hereby affirmed.

MILLS and ERVIN, JJ., concur.

      . We have jurisdiction to review this order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

      . Section 542.33 states in pertinent part:
      (1) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, otherwise than is provided by subsections (2) and (3) hereof, is to that extent void.
      (2)(a) . . . one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area .. . Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.

      . There is no question that Section 542.33 (recently renumbered from 542.12) is in derogation of the common law, which strongly disfavored covenants not to compete. Coffey, Non-compete Agreements By The Former Employee: A Florida Law and Analysis, 8 Fla.St.U.L. Rev. 727, 728-729 (1980). For that reason, it must be strictly construed. State v. Egan, 287 So.2d 1, at 6 (Fla.1973).

      . We do not hesitate to deem the settlement agreement as one falling within the ambit of Section 542.33(1). The statute, embodying the common law policy against contracts containing covenants not to compete, has been accorded a broad sweep of prohibitory application. See Flammer v. Patton, 245 So.2d 854 (Fla.1971), in which the supreme court invalidated a pension plan having noncompetition provisions.

      . At common law, despite the animosity accorded such covenants, restrictive agreements were sustained if they were (1) ancillary to a valid contract; (2) necessary to protect the covenantee’s enjoyment of the contract benefits, and (3) not primarily intended to restrain competition. Pensacola Associates at 946, n. 2.

      . 175 N.E.2d 374, 376 (Mass.1961). In Shevrin, the court affirmed a permanent injunction against an employee accused of converting the employer’s trade secrets, thereby enforcing a restrictive covenant in a restitution agreement which prohibited the employee’s competing with the employer in 26 states for 3 years.

      .Paragraph 11 of Eli Witt’s amended complaint alleges that “Plaintiff will be irreparably harmed and without an adequate remedy at law ...” Such an allegation is sufficient to justify the order. Summerlin v. Lamar Advertising of Pensacola, Inc., 419 So.2d 781 (Fla. 1st DCA 1982); Puga v. Suave Shoe Corp., 374 So.2d 552 (Fla. 3d DCA 1979). The grant of a temporary injunction is a matter within the discretion of the trial court. Id., Summerlin.


text:
    Alfredo ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-18.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal in this case, we find that the appellant has failed to demonstrate any reversible error, and therefore the judgments and sentences appealed from are affirmed. However, that portion of the judgment ordering the appellant to pay court costs totaling $740 and $10'to the Crimes Compensation Trust Fund is stricken because the appellant was insolvent at the time of sentencing. Ivory v. State, 419 So.2d 695 (Fla. 2d DCA 1982); Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981); Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

BOARDMAN, A.C.J., and SCHEB and RYDER, JJ., concur.


author: CAMPBELL, Judge.

text:
    Ernest E. GILLILAN and Betty Gillilan, husband and wife, Appellants, v. G.T. KNIGHTON and Jeanette Knighton, husband and wife, Appellees.
    No. 82-386.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.

      Tilden R. Schofield, Sebring, for appellants.
    Clifford M. Abies, III, Sebring, for appel-lees.
   CAMPBELL, Judge.

The parties in this case own adjacent lots on Lake Jackson, a navigable, freshwater lake in Highlands County, Florida. Their lots lie in separate subdivisions and the southern boundary of the Gillilans’ lot is the northern boundary of the Knightons’ lot. This common boundary is also the boundary between the two subdivisions. In the years since these subdivisions were first platted, the lake’s waters have receded and, through a combination of accretion or reliction, additional land has been built up or exposed lakeward of the lots in question. The Knightons’ plat reveals that Lake Jackson is the boundary of the subdivision lots. The plat containing the Gillilans’ lot is a replat of a portion of another plat on which riparian rights were specifically noted. The Gilli-lans are long-time residents of the area, and their dock and house have been in place for over thirty years.

In 1978, the Knightons began removing vegetation and building their own dock. This activity precipitated the present dispute. The Knightons, in building their dock and in removing the vegetation, built within the accretion area and remained in an area south of a straight line extension of their upland boundary. The Gillilans claimed that this activity impaired the use of their lot and diminished its value. Accordingly, they filed suit for declaratory and injunctive relief, stating that the accretion lands should be equitably apportioned in accordance with the parties’ existing lake frontage. The trial judge determined that the parties acquired title to the accretion lands by a straight line prolongation of the common boundary between the lots. The Gillilans appealed.

Two terms define the rights of parties in land contiguous to and bordering upon specific bodies of water. Riparian rights are those rights incident to ownership of land contiguous to and abutting flowing, navigable waters such as streams or rivers. American Law of Property, Yol. 6-A § 28.55 (1954). While this term is also often used to describe rights incident to ownership of property abutting a sea, lake, or pond, as contrasted with flowing, navigable waters, this is technically incorrect. Such lands are properly termed littoral. Id. at § 28.55. See Black’s Law Diet. 1192 (5th ed. 1979).

Whether called littoral or riparian, these rights include the right to additional lands formed by accretions or relictions. State v. Florida National Properties, Inc., 338 So.2d 13 (Fla.1976); Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428 (1912); Ford v. Turner, 142 So.2d 335 (Fla. 2d DCA 1962). In Florida, the extent of ownership in the lands is determined in accordance with equitable principles. Hayes v. Bowman, 91 So.2d 795 (Fla.1957). In Johnson v. McCowen, 348 So.2d 357 (Fla. 1st DCA 1977), the owners of a waterfront lot in Santa Rosa County alleged that their lot had increased by accretion and that they were entitled to these lands as littoral owners. They sought to extend one of their upland boundaries seaward in a straight line from the deed corner. The owners of the adjacent waterfront lot protested, saying that such an extension of the original boundary would invade their littoral rights. The court affirmed the trial judge’s finding that the new boundary should be established by equitably apportioning the waterfront property between the parties and stated:

[N]o rule can be laid down as to every situation, since .. . rights must depend in every instance upon the shape of the upland, the arm of the sea, and their [the parties] relative position to each other. The aim of all rules as applied to the rights of adjoining littoral proprietors on an irregular shore is to give each, as far as may be, a fair and reasonable opportunity of access to the channel. The general rules by which alluvion is apportioned between different littoral owners is, when practicable, [to] allot each proprietor a frontage of the same width on the new shore as on the old shore. When the general course of the shore curves or bends, two objects are to be kept in view; namely, to give each proprietor a fair share of the land and to secure to him convenient access to the water from all parts of his land by giving him a share of the outward line proportioned to a share of the line of the original shore owned by him.

348 So.2d at 360. See also Bliss v. Kinsey, 233 So.2d 191 (Fla. 2d DCA 1970); American Law of Property, Vol. 3 § 15.31 (1952).

In equitably apportioning lands acquired through accretion or reliction, many methods may be used, see, e.g., Clark, On Surveying and Boundaries (3d ed. 1959), but no one method is proper or improper. In the instant case, the trial judge visited the properties in question and in his final judgment extended the common boundary in a straight line, saying that to extend the boundary in any other manner would directly contradict the intent stated in the plats. The court is not bound by the terms of the plats or by law to apply any particular method of apportioning between property owners lands formed by accretion or reliction. While in this instance a straight line extension may be the method to achieve the most equitable apportionment of the lands formed by accretion or reliction, if the trial judge felt bound to use this method to the exclusion of other equitable principles, this was error. If, however, he chose the straight line method as the most equitable means of apportionment, no error occurred. Because we cannot determine on what basis the trial court acted, we reverse for the entry of a judgment determining the common boundary between the lots in question based upon the most equitable means of apportionment. In doing so the trial judge is not precluded from locating that boundary in the same place as he did in the final judgment appealed from, if he does so by applying the equitable principles we have discussed. His determination of the northern boundary extension of the Gil-lilans’ lot and the southern boundary extension of the Knightons’ lot was beyond the scope of the pleadings and involves rights of parties not before the court. We, therefore, reverse that portion of the final judgment pertaining to those boundaries.

REVERSED and REMANDED for findings.

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

      . “Accretion is the gradual and imperceptible depositing of solid materials from the water, such as mud, sand, or sediment along the shore of the riparian [littoral] upland .... Reliction is the term applied to land formerly covered by water which has become uncovered by recession of the water from the land.” Dean, Riparian Rights to Navigable Water, 15 Fla.B.J., 247, 248 (Mar. 1981).

      . The term alluvion is sometimes used interchangeably with accretion. Accretion is the act of deposit while alluvion denotes the result. See Mexico Beach Corp. v. St. Joe Paper Co., 97 So.2d 708 (Fla. 1st DCA 1957); Black’s Law Dict. 19, 70 (5th ed. 1979).


text:
    Clyde HINES, Appellant, v. STATE of Florida, Appellee.
    No. 82-653.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand to strike from the order of probation revocation the finding that appellant violated his probation by failing to pay supervision costs. The state failed to present evidence establishing appellant’s ability to pay. Watkins v. State, 368 So.2d 363 (Fla. 2d DCA 1979). We, however, affirm the revocation order and judgments based on the offenses of theft and attempted burglary.

We also remand for correction of the sentence because the trial court failed to comply with the mandate of section 921.-161(1), Florida Statutes (1981). The sentence must specifically reflect credit for time served. Williams v. State, 360 So.2d 61 (Fla. 2d DCA 1978).

OTT, C.J., and HOBSON and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Joseph CAVALLARO, Appellant, v. STATE of Florida, Appellee.
    No. 82-714.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was found guilty of grand theft and was given an enhanced sentence of ten years.

Appellant raises two points on appeal, only one of which has merit. He contends the trial court failed to make findings of fact in support of the enhanced sentence as required by the habitual offender statute, section 775.084(3)(d), Florida Statutes (1981). We agree.

The only statements made by the court in justifying the enhanced sentence were the following:

I find that you are within the purview of the career criminal statute and adjudicate you to be so.
Joseph, I don’t know what prompted you to do what you did, but you are now a career criminal and society has the right to do with you accordingly.

Pursuant to section 775.084(3)(d), the trial court must make findings of fact that demonstrate on their face that an extended term of imprisonment is necessary to protect the public from a defendant’s further criminal conduct. Eutsey v. State, 383 So.2d 219 (Fla.1980); Lawson v. State, 409 So.2d 181 (Fla. 2d DCA 1982). See also Lee v. State, 410 So.2d 182 (Fla. 2d DCA 1982). In the instant case, the judge failed to make specific findings of fact sufficient to satisfy the requirements of section 775.-084(3)(d).

Accordingly, we affirm appellant’s conviction, but vacate his sentence and remand this case for a new sentencing hearing at which appellant is entitled to be present.

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


author: BASKIN, Judge.

text:
    Jerome SILVERMAN, Appellant, v. EQUIFAX SERVICES, INC., Appellee.
    No. 81-1183.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Richard B. Marx, Miami, for appellant. Smathers & Thompson and John H. Hickey, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Appellant Silverman appeals the dismissal of his action pursuant to Florida Rule of Civil Procedure 1.420(e), requiring dismissal unless there has been record activity during the preceding year. Thirteen days before the one-year period expired, Silverman filed a Notice of Taking of Deposition directed to an out-of-state, non-party witness. Because Silverman was ill, the deposition was cancelled. The witness was alleged to be indispensable to Silverman’s claim. Equi-fax argues that Silverman’s notice constituted “passive effort” and that dismissal was proper. We reverse.

In American Salvage & Jobbing Co. v. Salomon, 367 So.2d 716 (Fla.3d DCA 1979), this court held:

It is obvious that the effect of the amendment is to preclude a trial court from exercising its ... inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to dismissal.

Id. at 717. In Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979), the court stated that a notice of taking deposition of a party, even if cancelled, advanced the action. We believe the same principle applies here. The notice of deposition, although not directed to a party, involved an important witness and, even though can-celled, advanced the action. See also Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972).

For these reasons, we reverse the trial court’s dismissal and remand for further proceedings.

Reversed and remanded.


text:
    Karen H. CLARK, as Personal Representative of the Estate of Delvert Wayne Clark, deceased, and for the benefit of Daniel T. Clark, son of Delvert Wayne Clark, deceased, Appellant, v. BETTER CONSTRUCTION COMPANY, INC., Jose Ortega, Jr., Parliament Insurance Company, and Charles L. Downey, Appellees.
    No. 81-1378.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Highsmith & Strauss and Philip Glatzer, Miami, for appellant.
    Magill, Reid, Kuvin & Lewis and Fred Lewis, Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon Derrevere, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Better Construction Company, a general contractor engaged to renovate a house, hired subcontractor Nelson’s Crane Service to install steel beams. Clark, an employee of Nelson’s Crane, was electrocuted when a cable used to hoist beams came into contact with overhead electrical wires. At the time, Clark and appellee Downey were engaged in lifting and placing the steel beams. After his death, Clark’s wife brought an action against Better Construction Company, Inc., its Vice President Ortega, and crane operator Downey, among others, despite the fact that Clark received workmen’s compensation. At the close of plaintiff’s case, the trial court directed a verdict and entered final judgment in favor of appellees. This appeal ensued.

In reviewing a directed verdict, the test we apply is “whether it appears as a matter of law that no proper view of the evidence could possibly sustain the position of the party against whom the verdict is sought to be directed.” Cook v. Mills, 374 So.2d 599, 601 (Fla. 3d DCA 1979). Holding that appellees are immune from liability as a matter of law, we affirm the trial court’s decision.

Workmen’s compensation statutes provide employers immunity from liability for negligent conduct. § 440.10, Fla.Stat. (1975); § 440.11, Fla.Stat. (1975). The degree of the negligence is irrelevant to the question of liability. Under chapter 440, the general contractor becomes the statutory employer of employees of its subcontractor and is required to furnish workmen’s compensation for all employees. In return, the contractor is afforded immunity from liability. Thus, in exchange for enabling injured workers to receive compensation without fault, employers receive immunity from suit. The Workmen’s Compensation Cases, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917); Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981); Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954). Workmen’s compensation statutes provide injured workers an exclusive remedy. The trial court correctly directed a verdict in favor of Better Construction Company.

Although, in Chase v. Tenbroeck, 399 So.2d 57 (Fla. 3d DCA 1981), we discussed guidelines for determining the relationship between different subcontractors of a general contractor, we do not apply those guidelines to these proceedings because we are not here concerned with employees of different subcontractors. Consequently, no need exists for a decision concerning the extent of control exercised by the employer as would be necessary under the Chase analysis.

Turning to the action filed against Charles Downey, we examine the allegations of negligence contained in the complaint. A supervisor enjoys the immunity afforded his employer unless he engages in conduct which, by direct involvement on his part, constitutes An affirmative act of negligence “going beyond the scope of his employer’s non-delegable duty.” Zurich Insurance Co. v. Scofi, 366 So.2d 1193 (Fla. 2d DCA), cert. denied, 378 So.2d 348 (Fla.1979). Since failure to provide a safe place to work has been ruled a corporate employer’s obligation subject to protection from lawsuits, Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973); see West v. Jessop, 339 So.2d 1136 (Fla. 2d DCA 1976), a supervisor owes a duty to provide a safe work place, not to the employee, but to the employer. Kruse v. Schieve. The supervisor is personally liable only if he “increases the risk of injury to the employee.” Lupovici v. Hunzinger Construction Co., 79 Wis.2d 491, 255 N.W.2d 590 (1977).

The complaint against Downey alleges:

30. The Defendant, CHARLES L. DOWNEY, was negligent and careless in the following respects:
(a). In negligently and carelessly operating the aforesaid crane in such a manner as to allow said crane or its component parts to come in contact with the aforesaid high-tension electrical wires;
(b). In negligently and carelessly failing to warn the deceased, DEL-VERT WAYNE CLARK, that said crane or its component parts then and there being operated by Defendant, CHARLES L. DOWNEY, was about to come in contact with the aforesaid high-tension electrical wires.

That Downey engaged in independent acts of negligence and breached a duty owed to an employee so as to establish liability on his part, Dessert v. Electric Mutual Liability Insurance Co., 392 So.2d 340 (Fla. 5th DCA 1981), cannot be concluded from the record before us. The only witness called by the plaintiff concerning Dow-ney’s alleged negligence was Downey himself. He testified that the crane had been stopped before the accident. Clark stumbled over scrap lumber while rotating a beam. Attempting to break his fall, Clark took hold of the beam and sustained a fatal injury when a cable holding the beam came into contact with overhead power lines. Downey testified that he had instructed Clark: “Look up, we got power lines.” Because the evidence failed to support the allegations contained in the complaint, the trial court correctly directed the verdict in favor of appellee Downey.

For these reasons, we affirm the judgment.

      . 440.10 Liability for compensation.—
      (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees, or any physician or surgeon providing medical services under the provisions of s. 440.13, of the compensation payable under ss. 440.13, 440.-15, and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment. A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s. 440.-11 from action at law or in admiralty on account of injury of such employee of another subcontractor.
      (2) Compensation shall be payable irrespective of fault as a cause for the injury, except as provided in s. 440.09(3).

      . 440.11 Exclusiveness of liability.—
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of the employment, or that the injury was due to the contributory negligence or comparative negligence of the employee.
      (2) An employer’s workmen’s compensation carrier, service agent, or safety consultant shall not be liable as a third party tort-feasor for assisting the employer in carrying out the employer’s rights and responsibilities under this chapter by' furnishing any safety inspection, safety consultive service, or other safety service incidental to the workmen’s compensation or employers’ liability coverage or to the workmen’s compensation or employer’s liability servicing contract. The exclusion from liability under this subsection shall not apply in any case in which injury or death is proximately caused by the willful and unprovoked physical aggression, or by the negligent operation of a motor vehicle, by employees, officers, or directors of the employer’s workmen’s compensation carrier, service agent, or safety consultant.

      . Chapter 78-300, Laws of Florida, amended section 440.11 to grant co-workers statutory immunity for ordinary negligence. Clark’s accident occurred in 1976.

      . During argument on the motion for directed verdict, Clark’s counsel stipulated that “Mr. Downey was telling the absolute truth when he said he was handling the job and the crane....”

      . Clark’s reply brief argues that an affirmative act of negligence occurred in the positioning of the crane on the street rather than on the Scopetta property. Again, we need not consider whether such an “allegation” constitutes affirmative negligence since the allegation did not appear in the complaint and no motion to conform the pleadings to the proof was presented. Furthermore, the argument raised in the reply brief was not advanced in the trial court.