author: SHARP, Judge.

text:
    The SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Relator, v. Hon. Robert B. McGREGOR, Circuit Judge, Seminole County, Florida; and Lynette T. Cornelison, Respondents.
    No. 80-327.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Ned N. Julian, Jr., of Stenstrom, McIntosh, Julian, Colbert & Whigham, Sanford, for relator.
    John J. Chamblee, Jr., Law Offices of Richard H. Frank, P.A., Tampa, for respondent, Cornelison.
   SHARP, Judge.

The School Board of Seminole County petitions this court for a writ of prohibition against the Hon. Robert B. McGregor, the trial judge, to prevent him from referring a matter back to the arbitrator, pursuant to Section 682.10, Florida Statutes (1979), for correction or clarification of an arbitrator’s award for back-pay due to the respondent, Lynette T. Cornelison, a teacher. We deny the petition.

The School Board was required to arbitrate this teacher’s grievance by the trial court’s order entered on March 1977. The matter concerned the teacher’s right to reemployment although she did not have tenure status, the violation as to this teacher of the School Board’s collective bargaining agreement during the 1975-76 school year, and other remedies. The matter was arbitrated on June 23, 1977; the final rebuttal briefs were filed August 17, 1977; and the arbitrator’s award issued on approximately September 15, 1977. The arbitrator found the School Board violated its agreement with the teacher; he required that she be reinstated on an annual contract basis “as soon as possible” at a salary applicable for the 1976-1977 school year; and he awarded her back-pay for the 1976-1977 school year, less any earnings she had from any source during that period.

Both the School Board and the teacher filed petitions to vacate and to modify the award pursuant to Sections 682.12, 682.13 and 682.14, Florida Statutes (1979). The trial court held hearings on these matters on March 14, 1979, January 23, 1980, and March 17, 1980. He indicated he intended to confirm the award, but intended to refer the matter back to the arbitrator to determine the amount of back-pay due the teacher . Because motions had been made under Sections 682.12, 682.13 and 682.14, the trial court clearly has the authority and discretion to take this proposed action.

The award in this case set forth guidelines, but not the actual amounts due the teacher. This should be simply and expeditiously handled within a short time period; and the reference should specify the calculations to be made by the arbitrator. The .balance of the award should be confirmed and enforced.

This case illustrates poignantly the old adage “justice delayed is justice denied.” The teacher received her “injury” in the 1975-1976 school year. In 1977 she was awarded back-pay and reinstatement, but she has received neither at this point. The “remedy” of reinstatement at the 1976-1977 salary schedule, with the ravages of inflation and devaluation of the dollar, may soon prove inadequate, and an “honor” she can no longer afford. We urge a speedy resolution of this matter.

PETITION DENIED.

CROSS and UPCHURCH, JJ., coneür.

      . The petition filed is technically deficient because it does not comply with Rule 9.100(e) Florida Rules of Appellate Procedure — requiring attachment of an appendix pursuant to Rule 9.220 — which in turn requires attachment of a conformed copy of the court’s order to be reviewed. It fails to do so in this case because no order or reference to the arbitrator has yet been entered by the trial judge. The petition, however, is not being denied on that basis alone and this opinion is being written to expedite the proceedings.

      . Florida Statutes § 682.10 provides that: on application of a party to the arbitration, or if an application to the court is pending under §§ 682.12, 682.13, or 682.14, on submission to the arbitrators ... by the court under such conditions as the court may order, the arbitrators . . . may modify or correct the award upon the grounds stated in § 682.-14(1)(a) and (c) or for the purpose of clarifying the award.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    GROVE KEY MARINA, INC., etc., et al., Appellants, v. Albert H. SAKOLSKY, d/b/a the Coconut Grove Hotel, et al., Appellees. CITY OF MIAMI, a Florida Municipal Corporation, etc., et al., Appellants, v. Albert H. SAKOLSKY, d/b/ the Coconut Grove Hotel, et al., Appellees.
    Nos. 79-446, 79-495.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied June 4, 1980.

      George F. Knox, Jr., City Atty., and J. Michael Haygood, Asst. City Atty., Daniels & Hicks and Sam Daniels, Anderson &, Moss, Miami, for appellants.
    Paul & Thomson and Parker D. Thomson, Miami, for appellees.
    Horton, Perse - & Ginsberg, Barranco, Darlson, Daniel & Bluestein, Miami, for Charthouse, Inc., as amicus curiae.
    Before HENDRY and HUBBART, JJ., and YANN, HAROLD (Ret.), Associate Judge.
   HENDRY, Judge.

The pivotal question to be addressed in this consolidated appeal is whether the City of Miami may lease its real property without competitive bidding, where the city expends no money for improvements on the land. The record reflects that the City of Miami leased certain of its real property at Dinner Key to Grove Key Marina, Inc. in March of 1973, and the lease was extended and modified in April of 1976. In January of 1977 an addendum to the 1976 lease was executed authorizing Grove Key Marina to enter into a sublease with Grove Restaurant, Ltd.; the lease and sublease were further amended in January of 1979. The 1973 lease between the City and Grove Key Marina, Inc. had been executed as a result of competitive bidding procedures; there was no competitive bidding relating to the 1976 lease, the 1977 addendum, the sublease agreement or the 1979 amendments thereto.

Thereafter the plaintiffs/appellees, Albert H. Sakolsky, doing business as the Coconut Grove Hotel, David Hill and T.P.I. Corporation, a Florida corporation, filed a complaint for declaratory relief in the circuit court which, inter alia, raised the issue of whether all the lease agreements/extensions/modifications/addenda/amend-ments/sublease agreements executed subsequent to the March 1973 are null and void because they had been entered into without compliance with the competitive bidding procedures contained in the City of Miami Charter and the Code of the City of Miami. The trial court determined that said agreements were void, the final declaratory judgment states in pertinent part:

“The January 31, 1977 Addendum to the Agreement of April 1, 1976 between the City and Grove Key as amended, and Sublease Agreement dated October 3, 1977, between Grove Key and Grove Restaurant, as amended, and any amendments thereto and assignments thereof or any building permits issued pursuant to such agreements, are hereby declared void.”

A reading of the Code, the City Charter. and relevant case law compels us to reverse the trial court decision. We find the holding in Mahoney v. Givens, 64 So.2d 926 (Fla.1953), is dispositive of the issue. Although there have been changes in the provisions of the Code of the City of Miami since 1953-Section 2-30 (1945) and Section 16-21 (1975)-none. have been material, substantial changes. And Section 2-29 (1940) was adopted without chañge as Section 16-22. The Mahoney court stated at 927:

“[T]he legislative intent behind the enactment of the ordinance was to require competitive bidding where money is to be expended by the City for public improvements or purchases, but we find nothing therein to indicate that the ordinance was intended to apply to a situation involving a contract or lease of real property by the City in return for the payment of money into the City Treasury.”

Accordingly, the cause is reversed and remanded to the trial court to proceed in a manner consistent with the views herein expressed.

Reversed and remanded.

      . This extension and modification was entered into after Grove Key Marina, Inc. made a presentation before the City Commission in January of 1976.

      . The trial court reserved ruling on the legality or “voidability” of the April 1, 1976 agreement on the basis that after trial .on the matters Grove Key Marina, Inc. and Grove Restaurant, Ltd. represented to the court that they had defenses available to demonstrate that the April 1, 1976 agreement should not be considered void in its entirety.

      . A comparison of these provisions reveals that the current sections contain an exception in public improvements under the City of Miami Charter, these improvements are for such as sewers and road improvements; the monetary amounts of Section 2-30 were increased; the provisions for “purchases” were deleted and treated in another, separate section; the exact language of Section 2-30 was recodified in Section 16-21.

      . The Supreme Court of Florida, by this opinion, affirmed the decree of the Circuit Court of Dade County, where the original proceeding was to determine whether the City had authority to grant a lease of the City’s realty, containing a restaurant, for five years at an annual rental in excess of $5,000 without first advertising for and receiving bids and awarding the lease to the highest bidder; clearly, the Supreme Court held that competitive bidding was required only when the City expends money for “public improvements or purchases.” In the cause before our court, the cost of improvements on the subject leased realty has been borne by the lessees, pursuant to the lease agreements.


author: PER CURIAM.

text:
    JERMEL, INC., a Florida Corporation, Robert’s Drug Store, Inc., a Florida Corporation, and Jerome Stern, Appellants, v. Morry S. FOX and Sylvia U. Fox, his wife, Individually, and Morry S. Fox, d/b/a Fox Medical Center, and Morry S. Fox, d/b/a Greater Miami Health Care Center, Appellees.
    No. 79-799.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied June 4, 1980.
    Hall & Swann and Richard H. M. Swann, Coral Gables, for appellants.
    Sheldon M. Simons and Lewis W. Fish-man, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Parr v. Spires, 41 So.2d 336 (Fla.1949).


author: COBB, Judge.

text:
    Don GRIFFIN, Appellant, v. PAN AMERICAN BANK OF ORLANDO, N. A., Appellee.
    No. 79-445/T4-425.
    District Court of Appeal of Florida, Fifth District.
    April 30, 1980.
    Rehearings Denied May 19 and May 23, 1980.
    Frank McMillan, Orlando, for appellant.
    Charles R. Fawsett of Fawsett, Smith, Mackinnon & Mathews, P. A., for appellee.
   COBB, Judge.

The trial court dismissed this action below with prejudice on December 26, 1978, for failure to prosecute. Appellant did not file a timely authorized motion within ten days that would have postponed the rendition of the order of dismissal pursuant to Rule 9.020(g), Florida Rules of Appellate Procedure. Instead, on January 9, 1979, fourteen days after the rendition of the order of dismissal, appellant filed a motion to reinstate the action, which the trial court denied on January 23, 1979. On February 21,1979, appellant filed his notice of appeal.

Since the rendition of the order of dismissal was not postponed, appellant had thirty days from December 26,1978 to timely file his notice of appeal. The. notice he filed on February 21, 1979 was tardy, and therefore we do not have jurisdiction.

Accordingly, sua sponte, we dismiss this appeal for lack of jurisdiction.

DAUKSCH, C. J., and UPCHURCH, JJ„ concur.


author: DOWNEY, Judge.

text:
    Marquit GRIMETT and Ronald Beasley, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-889, 78-1126.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied June 11, 1980.

      Richard L. Jorandby, Public Defender, Kenneth R. Barba and Cherry Grant, Asst. Public Defenders, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellants were tried as co-defendants, convicted of delivery of heroin, and sentenced to ten years imprisonment.

It appears from the evidence that Officer Pollock was contacted by a confidential informant to participate in a heroin purchase. As a result at 1:00 p. m. the officer proceeded to the parking lot of Zayre’s Department Store. Shortly after his arrival a car driven by appellant Grimett pulled up. Appellant Beasley was seated in the front passenger seat, and the confidential informant was in the rear of the car. Both appellants motioned to the officer to come over to the car. Appellant Beasley asked the officer, “Do you have the green?” The officer responded affirmatively and showed the appellant a roll of money. When asked if he had the heroin, appellant Grimett stated that he did and produced a large aluminum foil packet, opened it up, and placed it in the officer’s hand for inspection. The officer testified that at this time, he heard some one make the statement, “Here comes the cops.” Appellant Grimett grabbed the foil packet out of the officer’s hand and put it in his mouth. The officer grabbed appellant Gri-mett’s throat and recovered part of the foil packet. The officer removed the substance from the foil and placed it in a plastic bag.

Appellants pose three grounds for reversal. First, appellants assert the trial court erred in refusing to declare a mistrial as a result of statements made by a proposed juror. Secondly, appellants contend the court erred in refusing to declare a mistrial when it became apparent the State had violated the discovery rule. Thirdly, appellants argue they were entitled to discharge under the speedy trial rule.

During the voir dire examination of the jury the following colloquy took place:

“VOICE: Can you get excused from this — This is a criminal case. I was an ex-prison guard for 16 years.
THE COURT: That doesn’t cause any— that is no excuse for cause.
VOICE: I’m prejudiced against convicts.
THE COURT: They are not convicts. They are just charged with a crime.
VOICE: As far as I’m concerned, they are.”

Appellants moved for a mistrial which the court denied. However, the court instructed the jury thoroughly upon the presumption of innocence and in our opinion fully cured any problem resulting from the quoted colloquy.

During the course of his testimony, Officer Pollock stated that after Grimett put the aluminum foil packet in the officer’s hand someone in the car said, “Here comes the cops.” Beasley’s counsel objected to the statement on the ground that Pollock did not know who made the statement. The court overruled the objection, saying, “Someone in the car; we will determine that.” Pollock concluded his direct testimony at 12:00 o’clock, and the court adjourned the proceedings for lunch.

Court reconvened at 1:40 p. m. Thereafter counsel for both defendants conducted extensive cross-examination of Pollock. Eventually Pollock testified that Beasley was the only one in the car who might have made the statement.

After Pollock had completed his testimony and the court had excused him, the State called its second witness. At that point counsel for Beasley asked to approach the bench. Counsel then stated, “Judge, at this point I am going to move for a mistrial, and the reason being is (sic) surprise.” Counsel went on to argue, in essence, that the State had failed to supply him with the “Here comes the cops” statement, and “So I would say at this point I am surprised.”

Of course the thrust of appellants’ argument on this aspect of the case is that the State violated Florida Rule of Criminal Procedure 3.220(a)(1)(iii), in that it did not furnish appellants with the foregoing statement in accordance with appellants’ discovery demand. It is appellants’ contention that the trial court erred in not conducting an adequate hearing as required by Richardson v. State, 246 So.2d 771 (Fla.1971).

In our opinion the appellants did not preserve this point for appeal (Clark v. State, 363 So.2d 331 (Fla.1978)) because they made no objection to Officer Pollock’s testimony concerning the “Here comes the cops” statement on the grounds that the State had failed to comply with Rule 3.220. See North v. State, 65 So.2d 77, 82 (Fla.1953). Nor do we feel that anything said in State v. Cumbie, 380 So.2d 1031, would make the tardy motion for mistrial effective to preserve the point.

Finally, appellants contend that they were entitled to be discharged because they were not tried within the time frame set forth in Florida Rule of Criminal Procedure 3.191. We reject that contention because when time came for trial on September 21, 1977, co-defendant Beasley did not appear, as he was confined in the Dade County jail. Thus, his counsel was forced to move for a continuance. From Grimett’s standpoint this continuance falls within the provisions of Florida Rule of Criminal Procedure 3.191(d)(3), which provides that a defendant is entitled to discharge if the trial has not commenced within the time period set by the rule unless the failure to hold the trial is due to the unexcused actions of the accused or of a co-defendant in the same trial.

Accordingly, the judgments and sentences appealed from are affirmed.

AFFIRMED.

ANSTEAD, J.,' and TENDRICH, MOIE J. L., Associate Judge, concur.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Robert L. TURNER, Appellant, v. Evabel M. TURNER, Appellee.
    No. 78-2288.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied June 4, 1980.

      Warwick, Campbell, Dickenson & Hewitt, Palm Beach, and Larry Klein, West Palm Beach, for appellant.
    Charles F. Clark and Claude H. Tison of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   HERSEY, Judge.

Robert L. Turner appeals from a final judgment denying his petition for modification of alimony established by a property settlement agreement.

The parties were divorced in 1964 after approximately thirty-four years of marriage. They entered into a property settlement agreement which was incorporated into the final divorce decree. Under the agreement the wife was to receive as permanent alimony the sum of $3,150.00 each calendar quarter, or an amount equivalent to dividends paid on certain escrowed stock, whichever was greater. The husband was required to place shares of stock in trust and, in the event he defaulted in making alimony payments, the dividends, on those shares would be available to the wife. The original twenty-one thousand shares placed in escrow had increased at the time of the final hearing on the petition for modification to ninety-four thousand five hundred shares. Thus, the income generated by dividends and inuring to the wife’s benefit had increased from $14,000.00 in 1964 to approximately $98,000.00. Wife’s separate income increased during that same period and her total nqt worth increased to in excess of $3,000,000.00. During the same period, husband’s income and net worth increased proportionately.

Denial of the petition was based upon a finding that the relative positions of the parties had not significantly changed and, as to the insignificant change, it had been intended by the parties and was foreseeable by them at the time the agreement was executed.

The relative change of circumstances test which the trial court applied is not that change of circumstances contemplated by the statute. It is now rather firmly established that a change in the circumstances of either party may require modification of alimony. Thus, in Goldin v. Goldin, 346 So.2d 107, 109 (Fla.3d DCA 1977), the court stated:

A complete termination of alimony is both authorized and required under the statute where there has been a sufficiently substantial change in financial circumstances on the part of one or both parties to the marriage dissolution. Anderson v. Anderson, 333 So.2d 484 (Fla.3d DCA 1976); Craig v, Craig, 298 So.2d 189 (Fla.1st DCA 1974); Schlapik v. Schlapik, 329 So.2d 379 (Fla.3d DCA 1976).

Refusal to grant such a petition under appropriate circumstances will be considered an abuse of discretion. Goldin v. Goldin, supra. In sum, if the circumstances of the payor party change so that it is no longer economically feasible for that party to make the payments, then modification may be required. On the other hand, if the payor party becomes wealthy while at the same time the payee party becomes self-supporting and self-sufficient, then again a petition for modification should be granted. This is so because true alimony is based upon the needs of one party and the concomitant ability of the other party to pay. Absent either factor (not necessarily both), alimony is inappropriate.

We are not unmindful of the obligation of an appellate court to affirm “if the record as a whole discloses any reasonable basis, reason or ground on which the judgment can be supported.” Firestone v. Firestone, 263 So.2d 223 (Fla.1972). In that case, this rule was enunciated in the following language:

In other words, the findings of the lower court are not necessarily binding and controlling on appeal and if these findings are grounded on an erroneous theory, the judgment may yet be affirmed where appellate review discloses other theories to support it. See In Re Estate of Yohn, Fla.1970, 238 So.2d 290; Goodman v. Goodman, Fla.App.1967, 204 So.2d 21; Bambrick v. Bambrick, Fla.App.1964, 165 So.2d 449. Id. 225.

Accordingly, we look to the record to determine whether the judgment should be affirmed on another basis.

We note the following provision in the original property settlement agreement:

It is the intent of the parties that each shall waive, and each does hereby waive, any right to apply for an increase or decrease in the permanent alimony provided by this Agreement, each intending to establish irrevocably as the alimony which the Husband shall pay to the Wife those payments and transfers set forth in this Agreement.

The trial court, having concluded that appellant had failed to demonstrate a material change of circumstances, declined to rule on the- validity of this waiver.

As a general rule, any right may be waived, whether arising out of the constitution or conferred by statute or secured by contract. Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945); 12 Fla.Jur. Estoppel and Waiver, § 5. The general rule is limited by the caveat, however, that “a waiver is not allowed to infringe upon the rights of others or to transgress public morals or policy. Thus, if a law protects the public as well as an individual, the protection to the public or state cannot be waived by the individual.” 12 Fla.Jur. Estoppel and Waiver § 5.

Suhsection (3) of Section 61.14, Florida Statutes (1979) provides:

This section is declaratory of existing public policy and of laws of this state which are hereby confirmed in accordance with the provisions hereof. It is the duty of the circuit courts to construe liberally the provisions hereof to effect the purposes hereof.

This language presents the threshold question of whether the public policy of the state of Florida prohibits one from waiving the statutory right to seek modification of alimony payments. Such a policy, if it exists, would necessarily be based upon the right of society not to be burdened with the support of an individual for whom the statute would, in the absence of a. v/aiver of its benefits, furnish a method for obtaining support. If this were the public policy of Florida, then we would expect to uniformly find that a right to alimony may never be waived. However, the law is to the contrary.

Thus, where there is no provision for alimony in a judgment of dissolution and no reservation of jurisdiction is made for that purpose, no jurisdiction exists for subsequently entertaining a petition for alimony. Brown v. Brown, 338 So.2d 916 (Fla.2d DCA 1976); Poe v. Poe, 263 So.2d 644 (Fla.3d DCA 1972). In Hostler v. Hostler, 151 So.2d 672 (Fla.1st DCA 1963), the court determined that a provision of a separation agreement which released husband from “any and all costs, charges, and expenses as well as alimony, either temporary or permanent, instant to any divorce suit .” barred an award of alimony to the wife. Nor is lump-sum alimony subject to modification. Storer v. Storer, 353 So.2d 152 (Fla.3d DCA 1977); Zimmer v. Zimmer, 328 So.2d 525 (Fla.4th DCA 1976). Similarly, the court in Zakoor v. Zakoor, 240 So.2d 193 (Fla.4th DCA 1970), held that property settlement agreements in which the wife has waived her right to alimony prohibit an award of alimony unless the agreement is invalid because of fraud, duress, concealment, coercion, overreaching or unconscion-ability. Also, where a payment which incidentally contributes toward support is, in effect, payment for a property right, no modification is permitted. Mills v. Mills, 339 So.2d 681 (Fla.1st DCA 1976); Gilbert v. Gilbert, 312 So.2d 511 (Fla.3d DCA 1975).

The foregoing analysis leads inevitably to the conclusion that there are no public policy reasons which prevent a party from waiving either the right to alimony in the first instance or the right to subsequently obtain modification of alimony.

At least one of our sister states has adopted a similar rule. Section 102-106, Georgia Code, provides that a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or adversely affect the public interest. Applying this statute in Steffner v. Steffner, 228 Ga. 189, 184 S.E.2d 575 (1971), the Georgia Supreme Court held that a waiver by both parties of the right to seek modification barred husband from seeking a reduction in child support and alimony payments. Ivey v. Ivey, 234 Ga. 532, 216 S.E.2d 827 (1975); Dimon v. Dimon, 231 Ga. 750, 204 S.E.2d 148 (1974); Livsey v. Livsey, 229 Ga. 368, 191 S.E.2d 859 (1972). Similar results have been noted in Colorado: Cutter v. Cutter, 500 P.2d 995 (Colo.App.1972); and California: Section 139 California Civil Code. To the contrary, Ward v. Ward, 48 R.I. 60, 135 A. 241 (1926); and Missouri, Allcorn v. Allcorn, 241 S.W.2d 806 (Mo.App.1951).

We therefore conclude that the trial court was correct in denying the petition for modification since the parties, by their own agreement, conclusively and finally waived the right to petition for modification.

This conclusion is supported to some extent by dicta in Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946). The opinion does not indicate that the agreement before the court contained a clearcut waiver; however, the court found that the totality of language pointed toward an intent to waive. The result was somewhat clouded by the presence of an issue involving the support of minor children. Leaving that issue aside, the pertinent language is as follows:

If there were involved here only the question of maintenance money for the former wife, appellant here, we should not hesitate to affirm'the decree of the Chancellor, because the only logical construction which can be placed on the agreement of January 1, 1941, is that thereby the then husband and wife forever settled between themselves the question of what the then wife should receive from the then husband as and for support and maintenance, regardless of any future change in the fortunes or misfortunes or in the status of either, except as therein specifically provided. Then the divorce decree of May. 16, 1941, definitely approved and confirmed the terms of that agreement and specifically enjoined the plaintiff in that suit from prosecuting thereafter any other claims in this regard against the defendant.
So, she was estopped by the terms of her contract and by that final decree from claiming any relief against the defendant in her own behalf, not contemplated by that contract and decree. Id., 26 So.2d 179.

For all intents and purposes, then, the Supreme Court of Florida has recognized the enforceability of provisions in an agreement constituting a waiver of the right to subsequently seek modification of alimony payments.

The final judgment further ordered appellant husband to pay costs and the wife’s attorneys’ fees in an amount to be determined at a later date. It is abundantly clear that an award of attorneys’ fees in marital litigation may only be made upon a demonstrated need of one party and the ability of the other party to pay. Cummings v. Cummings, 330 So.2d 134 (Fla.1976). The record in this case amply evidences the wife’s ability to pay her own attorneys’ fees. We therefore determine that the award of attorneys’ fees was erroneous.

We affirm that portion of the final judgment denying the petition for modification and reverse that portion of the final judgment requiring the husband to pay the wife’s attorneys’ fees.

AFFIRMED IN PART AND REVERSED IN PART.

DOWNEY, J., concurs.

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

ANSTEAD, Judge,

concurring in part and dissenting in part:

In concur in the majority’s opinion except as to the issue of attorney’s fees. Section 61.16, Florida Statutes (1979) provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

While I agree that in an initial dissolution action an award of attorney’s fees should usually be predicated on a demonstration of need by the party seeking such fees, it appears to me that the statute also authorizes an award to one who is forced to defend an unwarranted, modification proceeding without a demonstration of need. I agree with the dissenting opinion of Judge McCord set out in Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977).


text:
    COOPER VILLAGE, INC., a Florida Corporation, Appellant, v. Frank A. MORETTI and Susan M. Moretti, his wife, Appellees.
    No. 79-302.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied June 9, 1980.
    Ira M. Krauss of the Law Offices of Kenneth P. Wurtenberger, P. A., Lauder-hill, for appellant.
    Barry G. Roderman of the Law Offices of Barry G. Roderman, P. A., Fort Lauderdale, .for appellees.
   DOWNEY, Judge.

Cooper Village, Inc., seeks review by interlocutory appeal of an order denying its motion to discharge a notice of lis pen-dens. Such an order is not reviewable pursuant to Florida Rule of Appellate Procedure 9.130. Section 48.23, Florida Statutes (1978), authorizes the court to control and discharge a notice of lis pendens as the court may grant and dissolve injunctions. However, this does not make an order granting or denying a motion to discharge a notice of lis pendens an order pertaining to injunctions within the purview of Rule 9.130(b); it simply means that the circuit court is to utilize the procedural standards or principles applicable to the granting or discharging of injunctions when considering a motion to grant or discharge a notice of lis pendens. However, since the notice of lis pendens affects the alienability of Cooper Village’s real property and could cause Cooper Village injury which may not be remediable on plenary appeal, we have decided to treat the matter as a petition for common law certiorari. Hallmark Manufacturing Inc. v. Lujack Construction Company, 372 So.2d 520 (Fla. 4th DCA 1979).

We have read the briefs in this cause and have concluded that Cooper Village has failed to demonstrate that the circuit court departed from the essential requirements of law when it denied Cooper Village’s motion to discharge the notice of lis pendens.

Accordingly, we deny the petition for common law certiorari.

Petition denied.

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


author: ERVIN, Judge.

text:
    Thomas Raphael FASENMYER, Appellant, v. STATE of Florida, Appellee.
    No. NN-366.
    District Court of Appeal of Florida, First District.
    May 1, 1980.
    Rehearing Denied May 28, 1980.

      Thomas Raphael Fasenmyer, in pro. per.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Fasenmyer appeals his convictions for breaking and entering with intent to commit a felony, grand larceny and use of a firearm in commission of a felony. Two of his points on appeal merit reversal for a new trial.

Fasenmyer’s first two points on appeal relate to a federal district court’s writ of habeas corpus which released him after a previous conviction for these crimes because his previous court-appointed counsel had been constitutionally ineffective. This court had affirmed his earlier conviction. Fasenmyer v. State, 305 So.2d 99 (Fla. 1st DCA 1974), cert. den., 315 So.2d 188 (Fla.1975). The federal judge cited the former counsel’s failure to move to suppress the in-court identification of Fasenmyer by the victim Oltmanns, based on a substantial likelihood of misidentification in circumstances surrounding a photographic display in which Oltmanns picked Fasenmyer’s picture out of nine others. The judge also cited former counsel’s failure to object to Oltmanns’s in-court identification of the gun after Oltmanns had previously picked it out of a display as that used in the burglary. Before the second trial, Fasenmyer’s new counsel appropriately moved to suppress the in-court identifications of both Fasenmyer and the gun by 'Oltmanns. The trial judge, after suppression hearings, denied both motions. Following his conviction, Fasenmyer moved for discharge in the federal district court, arguing that the federal court had decided the issues of admissibility of the in-court identifications and that the state court’s determinations were in derogation of the federal court’s decision. The federal court denied the motion, stating that its earlier ruling was not res judicata as to whether the in-court identifications were admissible. Here, Fasenmyer again argues that the trial judge erred in failing to suppress Oltmanns’s in-court identification of himself and the gun.

We do not agree that either the photographic display or the gun display was unnecessarily suggestive under the rule announced in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), or that the in-court identifications should have been suppressed. Oltmanns convincingly testified that his in-court identification was free from any alleged pre-trial taint, and was based upon his view of defendant during the burglary.

Next, Fasenmyer argues the trial court erred in denying his motions to cause the state to elect which of the two burglaries was the basis of the information and in permitting evidence of two burglaries. We agree that both burglaries were proper evidence under Counts I and III of the information, which charged two separate crimes.

Nor was there any error in the trial judge’s statement outside the presence of the jury concerning the extent to which accomplice witness Van Shrauss could be rehabilitated if the defense elicited certain responses from him on cross-examination, because defense counsel subsequently never questioned Van Shrauss in the presence of the jury to bring about the controversial testimony. We would caution however that the state should not on retrial be allowed to question Van Shrauss generally about other burglaries, and that any such questions should be specifically related to the identity of the gun allegedly used in the Oltmanns’ burglary. Thus questions asking whether the defendant and Van Shrauss stole guns during other burglaries are not relevant to any issue concerning the identity of the gun used in the crime charged, and could constitute reversible error.

Finally, the state did not make an objectionable “golden rule” argument during closing.

We agree with Fasenmyer, however, that the trial judge committed error first in allowing the state’s witness, and Fasen-myer’s accomplice, Van Shrauss, to testify that following the burglary Fasenmyer had threatened to kill him if he went to the police, and second in not conducting a “Richardson inquiry” before allowing the state to present a surprise witness.

As to the former error, while Van Shrauss testified generally to Fasenmyer’s involvement in the burglary, his testimony of the alleged threat was simply irrelevant to any fact at issue. Instead it tended only to put Fasenmyer’s character in issue, although he did not testify at trial. “[Evidence of a distinct crime ‘in no way connected by circumstances with the one’ in issue is inadmissible.” Williams v. State, 110 So.2d 654, 661 (Fla.1959). Because we reverse on other grounds for new trial, it is unnecessary to discuss whether this violation of the Williams Rule was harmless error. See Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980).

As to the latter error, Fasenmyer offered alibi testimony to show, through his wife and stepdaughter, that at the time he was alleged to have committed the burglary, he was in fact at the dog track with his wife. The wife’s testimony to that effect was corroborated by the stepdaughter who stated that she received at home a telephone call from her mother placed at the track. After the defense and the state had stipulated there would be no other witnesses other than one remaining defense witness, the trial judge allowed the jury to adjourn for the day. The next morning, the state, over objection, sought to produce a witness to rebut the stepdaughter’s testimony for the purpose of showing the call could not have been made from a public pay phone because none were on the premises. Although the witness’s name had not been provided to the defense as required by Fla.R.Crim.P. 3.220, the trial judge, while permitting the testimony, failed to hold an inquiry to determine whether the rebuttal testimony would prejudice the defense, and he also denied the defense motion for a recess to investigate, testimony which the witness would give. All witnesses had been released by the trial court the previous evening, and defense counsel was unable to recall Fasenmyer’s wife to clarify that the phone call could have been made from many public pay phones across the street from the track. According to the Florida Supreme Court’s most recent statement, failure to hold a Richardson inquiry after discovery violations by either the state or the defense is reversible error. Smith v. State, 372 So.2d 86 (Fla.1979). There appear to be no exceptions to the rule. See Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA 1980); Henderson v. State, 372 So.2d 217 (Fla. 1st DCA 1979); Miller v. State, 373 So.2d 377 (Fla. 2d DCA 1979); Thompson v. State, 374 So.2d 91 (Fla. 2d DCA 1979).

Reversed and remanded for a new trial.

MILLS, C. J., and SHIVERS, J., concur.

      . Outside the presence of the jury, the defense proffered Van Shrauss’s testimony to demonstrate that at a pre-trial deposition he had stated the gun used in the crime was stolen from a house he and defendant had burgled. The defense then intended to call the rightful owner of the gun, Ray Hamrick, to testify that his home was burglarized three weeks after the crime in question, thus showing that the gun could not have been used during the Oltmanns’ burglary. The state argued however, outside the jury’s presence, that Van Shrauss could be questioned about “other burglaries ... he committed with Mr. Fasenmyer . . The trial judge agreed, stating that if the defense impeached Van Shrauss before the jury, as in the proffer, the state would be able on re-direct to inquire further about the Hamrick burglary and to refresh the witness’s recollection about “other burglaries when guns were obtained.”


text:
    Alice Jones BING, Appellant, v. OCALA CLEAT COMPANY; Corporate Group Services, Inc., Appellees.
    No. QQ-259.
    District Court of Appeal of Florida, First District.
    May 1, 1980.
    Rehearing Denied June 3, 1980.
    John F. Welch, Ocala, for appellant.
    Merritt C. Fore, Jr., of Fore, Meffert & Futch, P. A., Ocala, for appellees.
   PER CURIAM.

The issue before the judge of industrial claims was whether the claimant was mentally incompetent so as to necessitate the appointment of a guardian and to defeat a statute of limitations’ bar to her claim for workers’ compensation benefits. Based solely on his observations of the claimant, and contrary to all recorded evidence, the judge of industrial claims found that the claimant was mentally competent. We reverse.

The test for mental incompetency sufficient to defeat applicability of § 440.-19(1)(a), Florida Statutes (1973), can be found in Thomas v. Westinghouse Electric & Mfg. Co., 160 Fla. 687, 36 So.2d 377 (1948).

Was the claimant so unsound in mind that he could not manage his ordinary affairs of life?

The judge of industrial claims’ finding in this regard must be based on competent substantial evidence. U. S. Casualty Co. v. Maryland Casualty Co., 55 So.2d 741 (Fla.1951). In the instant case, as in Thomas, supra :

Allegations of the claimant as to his mental incompetence are overwhelmingly substantiated by a preponderance of evidence. The evidence introduced by claimant has not been contradicted. The finding of the Deputy Commissioner was erroneous and clearly against the preponderance of evidence.

Accordingly, we reverse and remand for a new order consistent with this opinion and for determination of matters ripe for adjudication by virtue of this opinion.

Reversed and remanded.

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


author: McCORD, Judge.

text:
    Forrest WILLINGHAM, Appellant, v. BOYNTON SERVICE CORPORATION and Liberty Mutual Insurance Company, Appellees.
    No. QQ-498.
    District Court of Appeal of Florida, First District.
    May 6, 1980.
    Rehearing Denied June 9, 1980.
    Eugene L. Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    Robert H. Gregory, Miami, for appellees.
   McCORD, Judge.

Appellant, Willingham, appeals from an order of the Judge of Industrial Claims which denied appellant’s claim for temporary total disability benefits, permanent partial disability benefits, and medical expenses for a spinal fusion and subsequent treatment. We find that the evidence shows the accident which prompted the claim was causally related to Willingham’s need for the spinal fusion and subsequent treatment. Therefore, we reverse.

On June 19, 1977, Willingham injured his lower back in a work-related accident when he was employed by appellee Boynton Service Corporation, a company of which he was president. Willingham had previously, in 1973, injured his lower back in a work-related accident, when he was employed by Green Acres Sod, a company of which he also was president. After treatment for that earlier injury, Willingham’s doctor discharged him, giving him a 35% permanent functional impairment rating. In 1975, Willingham entered into a wash-out settlement as to that injury for the sum of $14,-000, $1,000 of which was allocated to “future medical expenses.” The evidence shows that after that first accident, Will-ingham returned to work and was able to perform fully his duties. He testified that his back gradually improved and that from 1975 until June 1977 he constantly improved and extended his work and off-duty activities. He testified that he even engaged in bike riding, swimming, hunting and bowling. He also testified that in September 1976 he consulted an orthopedic specialist, Dr. Rahilly, to see if anything could be done “to help me get rid of this pain if it continued to progress.” Dr. Rahilly testified that when he saw Willingham in September 1976 he told him that his back condition would probably get worse as time went on and that the “only way out was to have a spinal fusion operation.” Willing-ham testified that before the second accident, he would not consider the fusion surgery.

After the 1977 accident, Willingham was treated by other doctors with physiotherapy but also returned to Dr. Rahilly. He and Dr. Rahilly testified that Willingham was much worse after the 1977 accident.

In November 1977, Willingham had the spinal fusion surgery. As a result of the surgery, Willingham could not fully perform his job for the following eight months, after which he was able to gradually assume more duties. Employer paid Willing-ham his salary for the months he was temporarily disabled.

Dr. Rahilly testified that the necessity for the surgery in November 1977 was the result of a combination of causes, including the aggravation of the back problem by the second accident. Dr. Rahilly also testified that, in his opinion, the 1977 accident was the final straw which caused Willingham to have to have the fusion surgery. He testified that he would estimate that appellant suffered an additional disability of about 20% of the body as a whole as a result of the second accident. Dr. Rahilly was the only medical expert testifying.

The Judge of Industrial Claims found that the necessity for the spinal fusion operation was not related to the June 1977 accident; that the operation and its residual effects were causally related to the 1973 accident for which this employer/earrier is not responsible. Thereupon,'the Judge of Industrial Claims denied Willingham’s claim for temporary total disability benefits, permanent partial disability benefits, and for medical expenses for the spinal fusion and subsequent treatment. He ordered employer/carrier to pay for Willingham’s medical expenses for physiotherapy for the temporary aggravation of the pre-existing condition up until November 27,1977, when Will-ingham had surgery.

The only testimony before the Judge of Industrial Claims (that of Willing-ham and the deposition of Dr. Rahilly) shows that the June 1977 accident played a part in the sudden necessity for the surgery, and the June 1977 accident added a 20% disability to Willingham’s pre-existing 35% disability. Thus, the Judge of Industrial Claims’ conclusion that the necessity for the spinal fusion surgery was not causally related to the June 1977 accident is not supported by competent substantial evidence. The evidence presented supports a conclusion that the June 1977 accident contributed to the need for the surgery and that it also caused an additional permanent partial disability. When a pre-existing disabling condition contributes to the need for medical treatment after a second injury, if the second injury also' contributes to the need for those medical benefits, the second employer/earrier must pay for the treatment. § 440.02(18), Fla.Stat. (1977). Therefore, the Judge of Industrial Claims erred in denying Willingham permanent partial disability compensation as a consequence of the June 1977 accident. He also erred in denying the claim for payment of medical, surgical and hospital expenses and benefits.

Since the disabilities resultant from the spinal fusion operation are compensable, the Judge of. Industrial Claims erred in not assessing temporary disability benefits due Willingham and in not ordering reimbursement of compensation paid by the employer (in the form of wages during Willingham’s disability) as required by § 440.20(13).

Reversed and remanded for reconsideration in light of this opinion.

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


author: NESBITT, Judge.

text:
    Basil McDERMOTT, Petitioner, v. The STATE of Florida and the Honorable Frederick Barad, Respondents.
    No. 80-449.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.

      Albert Zemlock and Jerold Feuer, Miami, for petitioner.
    Janet Reno, State’s Atty. and Kurt Lyle Marmar, Asst. State’s Atty., for respondents.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The issue before us is whether there was such undue separation of the jury between the time it was impaneled and sworn to try a criminal case and the time the case was actually set for trial so as to warrant the defendant’s discharge. Because of the unique circumstances presented, we determine that there was an undue separation of the jury and quash the trial court’s order which denied the defendant’s motion for discharge.

On November 1, 1979, the defendant was charged, by information, with aggravated child abuse as denounced by Section 827.03, Florida Statutes (1979). He filed a demand for speedy trial. On the afternoon of January 15,1980, both the state and the defense announced that they were' “ready for trial” and a jury was duly impaneled and sworn to try the case. The state obtained leave of the court to postpone its opening statement to the following morning so as to have an opportunity to confer with witnesses. When the trial resumed the following morning, January 16,1980, the state obtained a continuance based upon representations that material witnesses were not available. Specifically, the state indicated that the victim, who was the minor son of the defendant, was in the State of New York with his mother. The record demonstrates that the state contacted the mother by telephone at approximately 9:30 P.M. on the evening of January 15th at which time she announced she would not make the child available to testify.

The mother had obtained a divorce decree awarding her custody of the minor victim by. the New York supreme court. For reasons not apparent from the record, the mother, the minor victim and the father were in Miami when the offense charged occurred. Thereafter, the parties became embroiled in a custody dispute over the youth in the juvenile division of the circuit court in Miami.. The mother was permitted to return to the State of New York with the boy because she indicated to the judge in the juvenile division that she would make the. child available in Miami at the time of the defendant’s criminal trial. It was the state’s reliance on that representation in the collateral proceeding which prompted it to announce “ready for trial.” The state did not otherwise make any attempt to secure the attendance of witnesses by service of process.

In reliance upon the state’s representation that it would commence extradition proceedings of the mother and the minor victim, the trial court granted the state a continuance. The trial was rescheduled for February 12, 1980. When the case was. called for trial on that date, the same inability to obtain the presence of witnesses plagued the state in its presentation of evidence which precipitated the granting of a further continuance until February 25, 1980. When the February 25th trial date arrived, the state was still unable to proceed to trial for essentially the same reasons it had asserted previously and, on that basis, the court once again granted the state a further continuance, this time until March 11, 1980. At each of the appointed' trial dates, the defendant resisted the state’s motions for continuance. On February 25, 1980, the trial court entered a written order denying the defendant’s motion for discharge.

On March 3, 1980, the defendant commenced this original proceeding, pursuant to Florida Rule of Appellate Procedure 9.100, seeking a writ of prohibition. Since we find that there was a departure from the essential requirements of law, we treat this proceeding as a petition for certiorari-pursuant to Florida Rule of Appellate Procedure 9.040(c). This court issued an order to show cause to which the state filed its response and the matter was presented orally before the court.

On January 15, 1980, after the jury was sworn to try the case, it was given the customary admonition. The jury reported for service on the morning of January 16th, but after the motion for continuance was granted, the jury was allowed to disperse. The jurors never reassembled and remained on a standby basis.

When the jury panel was sworn for voir dire examination, the trial was deemed to have commenced for the purpose of the speedy trial rule, Florida Rule of Criminal Procedure 3.191. Moore v. State, 368 So.2d 1291 (Fla.1979). Therefore, disposition of this case is not governed by the speedy trial rule. Additionally, the continuances authorized by Florida Rule of Criminal Procedure 3.190(g) are those prior to commencement of the trial. Consequently, the central question is governed neither by rule nor statute and is essentially novel to this jurisdiction.

Jeopardy attaches at the time the jury is impaneled and sworn to try a criminal case. Moore v. State, supra. Once impaneled, dependent upon the circumstances of the case, a jury may be allowed to separate upon due admonition or it may be sequestered durihg the progress of the trial. The trial may be terminated where the court grants the defendant a mistrial or the state obtains a mistrial on grounds of manifest necessity so as to ban the defense of former jeopardy. State v. Iglesias, 374 So.2d 1060 (Fla.3d DCA 1979). If not so terminated, a trial will normally proceed from the impaneling of the jury on through rendition of the verdict without undue interruption. A continuance during the progress of the trial which results'in protracted jury separation must be based upon a real and substantial need which is supported by a showing of due diligence and good faith. A short continuance for an overnight recess, a weekend, a holiday or one that is required for some other substantial reason such as illness or death in the family of a juror or counsel, or to take the deposition of an undisclosed witness, resides within the sound discretion of the court.

The rule is premised upon the state’s interest in the integrity of the jury system and the assurance that an impaneled jury will remain free of any extraneous influence. A distillation of cases points to no inflexible rule but merely indicates that the manner of a continuance must be balanced by the societal interests against the rights of the accused on a case by case basis. Among the factors assessed are the length and reason for the delay, the defendant’s assertion of his right to proceed to trial, and possible prejudice. Generally, prejudice is not presumed but must be demonstrated by the party allegedly aggrieved. As the seriousness of the crime decreases, so does the tolerable- length of delay. While the rule is influenced by constitutional concepts, it is grounded more upon the prophylactic need to avoid possible jury contamination than upon the organic law. See, Annot. 72 A.L.R.3d 100 (1976).

Allowing a continuance during trial is left to the discretion of the court; however, with the passage of considerable time, the party claiming to be aggrieved by the undue delay in presentation of a case to a jury need only show the existence of circumstances capable of prejudicing the deliberate functions of a jury. At that juncture, the party aggrieved need not prove that prejudice actually resulted. State v. Bris son, 124 Vt 211, 201 A.2d 881 (1964). Indeed, such a requirement would place an intolerable burden on a party to demonstrate actual prejudice because parties are ethically, and by order of the court, prohibited from having any extrajudicial contact or communication with an impaneled jury.

In this case, the jury would have been separated for a period of time of fifty-five days commencing January 16, 1980 until the projected trial date of' March 11, 1980. The state did not show good cause to warrant a continuation in the first instance. It has relied at its own peril, on the mother’s representation that she would return the child on the appointed trial date. The defendant did not, in any way, contribute to the delay. Instead at all times,' he has asserted his right to a prompt trial. The state has already obtained the benefit of three continuances. Had the swearing of the jury for voir dire examination not interrupted the operation of the speedy trial law, Moore v. State, supra, Florida Rule of Criminal Procedure 3.191(f)(iii) would only authorize the state two such continuances for the unavailability of witnesses and then only under exceptional circumstances. In this case, we cannot condone the state doing indirectly what it could not do directly. We add, however, that since no statute or rule governs, more numerous continuances within a shorter span of time would not necessarily be impermissible. Here, the lapse of time coupled with the state’s lack of diligence overcame the defendant’s need to show that the separation of the jury actually prejudiced his rights. In State v. White, 129 Vt. 220, 274 A.2d 690 (1971), a delay of sixty-two days constituted a sufficient period of time of jury separation so as to warrant reversal of the defendant’s judgment of conviction.

The same reasoning prompted a reversal of a criminal conviction in Raines v. State, 65 So.2d 558 (Fla.1953) where- a jury was allowed to separate overnight for a period of fifteen hours without the admonition now required by Section 918.06, Florida Statutes (1979). There, the court stated:

There is no showing in the way of evidence that defendant’s rights were prejudiced but trials should not be conducted in a way that defendant has good reason for the belief that he was deprived of fundamental rights. The opportunity was open for tampering with the jury and the temptation to do so was such that we are not convinced that the appellant’s trial was conducted with that degree of fairness and security that the bill of rights contemplates. A fifteen hours absence under no restraint whatever leaves too much room to question the bona fides of everything that took place during that time, particularly when one defendant was acquitted and the other was convicted on the same charge and evidence. It imposes too great a burden on defendant to produce evidence of prejudice to his rights under such circumstances. We think this error calls for reversal.

65 So.2d at 559-60.

For the foregoing reasons, the order of the trial court is quashed with directions to grant defendant’s motion for discharge.


author: BASKIN, Judge.

text:
    Cecilia A. JOHNSON, Petitioner, v. Hon. Ralph B. FERGUSON, Jr., Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 80-552.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.

      Cecilia A. Johnson, in pro. per.
    I. Richard Jacobs, Miami, for respondent-
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

In this petition for writ of mandamus, we are asked to order respondent, Honorable Ralph B. Ferguson, Jr., to rescind his order compelling the immediate sale of the former marital home of the parties. We find the circuit court judge exceeded his jurisdiction in entering the order and grant the petition for writ of mandamus.

Under the terms of a final judgment dissolving the marriage, case number 78-16336 FC (04), petitioner was awarded the right to remain in the marital home until the minor child reached the age of eighteen. The husband and wife were each ordered to pay half the mortgage payments on the property, which the parties now own as tenants in common.

Neither party paid his share of the mortgage payments, and a final judgment foreclosing the mortgage was entered in Oritani Savings and Loan Association v. James B. Johnson and Cecilia A. Johnson, case number 79-15275. The home was ordered to be sold in accordance with the mortgage foreclosure proceedings. A stay of the foreclosure sale has been granted until May 23, 1980.

The trial court, in the dissolution proceeding, entered an order compelling the showing of and the immediate sale of the former marital home. It is this order petitioner seeks to have rescinded on the ground that her right to the property vested upon rendition of the final judgment of dissolution.

We grant the petition for writ of mandamus because we find the trial court lacked jurisdiction to order an immediate sale of the home. The order of the trial court was entered more than a month after the final judgment of dissolution and after the notice of appeal had been filed. The trial court, therefore, lacked jurisdiction to enter the order compelling sale. Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978) and Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971). Respondent relies Upon rule 9.600(c), Florida Rules of Appellate Procedure, which allows the lower court to retain jurisdiction to enter and enforce orders necessary to protect the welfare and rights of any party pending appeal. We hold that the order requiring the sale of the home is not an order within the contemplation of the rule. See generally Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976) and Simon v. Simon, 293 So.2d 780 (Fla. 3d DCA 1974).

We note that the trial court apparently sought to protect the parties from a loss of their marital home under the final judgment of foreclosure. Although we grant the relief sought by petitioner, we realize that the actions of the parties in failing to make their mortgage payments will result in the loss of their equity in the home unless immediate action is taken in other pending cases.

For the foregoing reasons, we direct the trial court to vacate the order compelling the parties to sell the property. We do not issue the final writ of mandamus because we believe the trial court will act in accordance with the decision of this court.

Because the foreclosure sale is presently set for May 23,1980, we decline to entertain petitions for rehearing. This opinion is final.


author: LETTS, Chief Judge.

text:
    Harvey E. OYER, Jr., Appellant, v. Linda E. BOYER f/k/a Linda E. Oyer, Appellee.
    No. 78-1702.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Larry Klein, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, P.A., West Palm Beach, for appel-lee.
   LETTS, Chief Judge.

This appeal evolves out of a trial court award of attorney’s fees moved for 28 days after a final order which modified child support and made custody changes as to three minor children. The only language in the modification order which could be construed to allow for retention of jurisdiction for such an award was:

“The Court retains jurisdiction hereof for the purpose of regulating and protecting the welfare of the said minor children and of hearing any proper modification agreed to by the parties herein.”

We find the foregoing language insufficient and reverse.

When the wife first filed her petition to modify the child support, (after which the husband counter-petitioned for a custody change) she properly included a prayer for attorney’s fees. However, other than first above quoted, the final order contained no language retaining jurisdiction to award any such fees.

While the wife maintains the above quoted language is sufficient, she contends entitlement to such fees in any event because opposing counsel stipulated to a retention of jurisdiction to award them during the hearing on the modification. The husband denies any such stipulation.

We have read, and re-read, the applicable colloquy in the transcript relative to the stipulation and incline to the view that though the husband may be technically correct, the obvious intent and. import of the colloquy is to the contrary. Accordingly, were this dialogue about alleged stipulation determinative, we would be required to analyze it in this opinion; however, we are confident that, stipulation or no, it is the final modification order which controls.

Attorneys simply cannot stipulate to prolong jurisdiction. Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); International Studio Apartment Association, Inc. v. Sun Holiday Resorts, Inc., 375 So.2d 335 (Fla. 4th DCA 1979). We have bemoaned this fact before, most recently in the above two cited cases. We agree it is grossly inequitable for an attorney to be able to renege on his solemn agreement in the record. Nevertheless the question of jurisdiction is absolute and the cases so holding are too numerous to require citation. In the case now before us, no petition for rehearing was filed within the time allowed under the rules. This being so, the trial court was powerless to make the award. One case almost on all fours with the case at bar (except that the stipulation on fees was not there disputed) is Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). In Frumkes the Third District held the trial court without “. . . power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment.” We agree.

As to the retention language employed in the modification order, speaking to the regulation and protection of the children, it is true that such may well require the services of attorneys to achieve the desired result. However we are unable to read attorney’s fees into the language of the order.

Finally, the wife argues that jurisdiction to award attorney’s fees in the modification proceedings can be predicated on the original final judgment of dissolution in which jurisdiction over costs and attorney’s fees was retained pursuant to paragraph 17 of the separation agreement which reads:

17. This agreement makes no provision for the payment by either party to the other of attorneys fees incurred in connection with the preparation of this agreement and with the pending legal proceeding which will culminate in the judgment dissolving the marriage. Neither party concedes that he or she should be obligated to pay the fees of the other, but each party reserves the right to make application to the Court for the payment of such fees by the other. Each party agrees that the other may have a separate hearing as to whether he or she should be responsible for any of the other’s attorneys fees, and shall have the right at any such hearing to introduce proof of the value of this property settlement to the Wife. In the event that either party is liable to pay the other’s attorney a fee the party shall not be obliged to pay the fee prior to the final disposition of the pending personal injury suit.

As was the case with the alleged stipulation earlier discussed, we are also precluded from analyzing this separation agreement language becaúse of yet another stipulation in the record which cancelled any right to make application to the court for fees and costs and specifically satisfied all the conditions of said paragraph number 17 for $4,500.00. This latter stipulation concludes that $4,500.00 is the upper limit . . and any balance . . . shall be the sole responsibility of [the] wife.”

Accordingly, this cause is reversed with directions to the trial court to set aside and cancel both orders dated July 7th, 1978 awarding a total of $7,550.00 in attorney’s fees and $159.31 in costs.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

      . We stress that we make no finding of such a solemn agreement on the part of the husband’s attorney in the instant case.


text:
    Seymour PIKEN, Appellant, v. Robert BUTTERWORTH as Sheriff of Broward County, Florida; Eugene Garrett as Judge of the Circuit Court, Appellees.
    No. 79-1822.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Rehearing Denied June 4, 1980.
    H. Dohn Williams, Jr., of Varón & Stahl, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED. See Stack v. State ex rel. Morgan, 381 So.2d 366 (Fla. 4th DCA 1980).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    Benjamin ROBIDOUX, Petitioner, v. Honorable Thomas M. COKER, as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 80-197.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Rehearing Denied June 11, 1980.

      Alan H. Schreiber, Public Defender, and Howard Finklestein and Channing Brackey, Asst. Public Defenders, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen.i Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Judge.

By petition for writ of prohibition the petitioner, Benjamin Robidoux, a juvenile, seeks to prohibit the adult criminal division of the circuit court from exercising jurisdiction with regard to two counts of an indictment which also charged petitioner with an offense punishable by death or life imprisonment in a separate count.

Section 39.02, Florida Statutes (1979) provides that upon indictment on a violation of Florida law punishable by death or life imprisonment, a child shall be tried as an adult. Petitioner was indicted, in three separate counts, for the offenses of armed robbery, attempted murder, and aggravated assault. Only the first count, armed robbery, is a crime punishable by life imprisonment or death. The assigned judge in the criminal division of the circuit court nevertheless denied petitioner’s motion to dismiss the other two counts. Petitioner contends that the criminal division lacks jurisdiction over the two charges in question absent a waiver of jurisdiction by the juvenile division. The petitioner is not challenging the court’s jurisdiction on the armed robbery charge.

Chapter 39 sets forth a comprehensive procedure for the treatment of offenders below the age of eighteen (18) years. Exclusive original jurisdiction of such offenders is vested in the juvenile division of the circuit court. However, four exceptions allowing for treatment of juveniles as adults are contained in Chapter 39. Under the first exception, a child 14 years of age or older may be certified for trial as an adult by a juvenile judge following a waiver hearing. Section 39.02(5)(a). Secondly, a child may, joined by his parent or guardian, demand to- be tried' as an adult. Section 39.02(5)(b). Thirdly, a child, if age 16 or 17 at the time of the alleged offense, may also be tried as an adult upon the filing of an information by the state attorney if the child has previously committed two delinquent acts, one a felony under Florida law. Section 39.04(2)(e)(4). Finally, as is the case here, a child of any age charged with a violation of Florida law punishable by death or life imprisonment shall be tried as an adult if an indictment on such charge is returned by the grand jury. Section 39.-02(5)(a).

Under Section 39.02(5)(c) a child must be initially charged by a delinquency petition unless charged by indictment with a crime punishable by death or life imprisonment. See Collins v. State, 381 So.2d 328 (Fla. 5th DCA 1980); Johnson v. State, 379 So.2d 704 (Fla. 3d DCA 1980); Whidden v. State, 374 So.2d 543 (Fla. 2d DCA 1979); In Interest of S. E. B., 365 So.2d 451 (Fla. 1st DCA 1978); Ringel v. State, 352 So.2d 88 (Fla. 4th DCA 1977), aff’d. 366 So.2d 758 (Fla.1978); E. H. N. v. Willis, 350 So.2d 829 (Fla. 1st DCA 1977); A. D. T. v. State, 318 So.2d 478 (Fla. 1st DCA 1975).

In E. H. N. v. Willis, supra, a minor was charged by a single information with two felonies and thereafter charged by a single information with two more felonies. At the time the four felonies were committed the minor was serving a senténce based upon a prior felony conviction in the adult division and the four felonies arose from or were closely connected with the incarceration arising out of the prior felony conviction. A motion to dismiss was denied. In holding that the adult division was without jurisdiction, the First District held that Section 39.02(5)(a), the waiver hearing statute, permits the child to be treated as an adult for the sole purpose of dealing with the alleged violation pending in the juvenile division and no other, and that a waiver hearing and certification is necessary for a new criminal charge even though the juvenile division had previously waived jurisdiction as to an earlier criminal charge.

A similar result was reached in A. D. T. v. State, supra. In that case, the juvenile defendant was charged by indictment with one count of disorderly intoxication and three counts of resisting arrest with violence. The First District held that the indictment could not substitute for a petition alleging delinquency. Noting that substitution was permitted only when the child is charged by grand jury indictment with a violation of Florida law punishable by death or life imprisonment, the First District reasoned that if the legislature had intended for an indictment to be used in the place of a delinquency petition in any other situations, it would have so provided. Similar conclusions have been reached in the Third and Fifth Districts. See State ex rel. Lugo v. Sepe, 296 So.2d 640 (Fla. 3d DCA 1974); Johnson v. State, supra; Collins v. State, supra. We believe these decisions are correct in strictly limiting adult treatment of juveniles to the four exceptions contained in Chapter 39.

While it might be more convenient to dispose of all three counts involved herein in one judicial proceeding in the adult division, we do not believe the fact that the attempted murder and aggravated assault charges arose out of the same incident as the life felony charge of armed robbery is sufficient to allow- adult jurisdiction. E. H. N. v. Willis, supra. Nor are the two charges simply lesser included offenses of the life felony charge. Quite simply, as in A. D. T. v. State, supra, transfer of jurisdiction on these two charges cannot be accomplished by simply including the charges in an indictment on the life felony charge. Only the offense punishable by death or life imprisonment is properly before the adult court. What could not have been done separately; i. e., by the filing of separate indictments for the three offenses, cannot be done by the simple expedient of a single indictment. The state is not precluded from seeking a waiver hearing on the attempted murder and aggravated assault charges under the other exceptions of Chapter 39, assuming the proper filing of a delinquency petition. However, the fact that such a course of action may, in practice, appear to be superfluous or inefficient, as perhaps was the case in E. H. N. v. Willis, supra, and A. D. T. v. State, supra, is a problem for the legislature to address. This court is not authorized to create a fifth exception.

For these reasons, we conclude that the petition should be granted; and, accordingly, the trial court is hereby directed to enter an order dismissing Counts II and III of the subject indictment in accordance with the terms of this opinion.

LETTS, C. J., and DOWNEY, J., concur.

      . This was before the enactment of Section 39.04(2)(e)(4).


text:
    Larry WILLIAMS, John Thomas Williams, Earl Bernard Wilson, Appellants, v. STATE of Florida, Appellee. Herman Lee DUGGS, Appellant, v. STATE of Florida, Appellee.
    Nos. MM-71, MM-129.
    District Court of Appeal of Florida, First District.
    May 7, 1980.
    Rehearing Denied June 4, 1980.

      Michael J. Minerva, Public Defender, Tallahassee, for appellants, Larry Williams, Earl Bernard Wilson, and Herman Lee Duggs.
    Hugh A. Carithers, Jr., of Sheppard, Car-ithers & Weinbaum, Jacksonville, for appellant, John Thomas Williams.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants challenge their convictions of attempted second-degree murder, attempted kidnapping, conspiracy to commit armed robbery, and conspiracy to kidnap. Additionally, appellant John Thomas Williams objects to his conviction, in a second trial, of possession of a firearm by a convicted felon. Altogether, the various appellants raise seven points on appeal. We affirm in part and reverse in part.

In February 1978, all the appellants except Earl Wilson planned to kidnap and rob a Jacksonville man and his wife. One of the conspirators was James Fairfax, who in fact was a confidential police informant. One attempt failed and a second was aborted. On March 6, 1978, a third attempt was made, but the police knew of it and apprehended the conspirators.

Appellants Larry Williams, Wilson, and Duggs raise the first point, that they were denied their right to a speedy trial. The court refused to grant a severance of defendants when the state requested a continuance to find Fairfax for trial and when John Thomas Williams was too ill to stand trial (he was shot during the attempt).

Appellants contend the state did not diligently attempt to locate Fairfax, so the exceptional circumstances for extending speedy trial limits, listed in Rule 3.191(f), Florida Rules .of Criminal Procedure, did not exist. They also argue that John Thomas Williams’ illness was not an exceptional circumstance because the state did not claim any prejudice would result from multiple trials, and that there was excessive evidence against John Thomas Williams compared to that against the others.

We affirm. Fairfax’s testimony made it clear that he continually moved from one Florida location to another, and Jacksonville police made numerous attempts to find him through his contacts in the Tampa and Polk County police agencies. See State v. Felton, 348 So.2d 1214 (Fla. 4th DCA 1977). Nor did the trial judge abuse his discretion by denying severance because of John Thomas Williams’ illness. Dove v. State, 287 So.2d 384 (Fla. 1st DCA 1973). A motion for severance may be denied, moreover, even when one co-defendant commits more reprehensible acts than another. Scheel v. State, 350 So.2d 1120 (Fla. 3rd DCA 1977).

Larry Williams and Wilson raise the second point, that the evidence was insufficient to establish their knowing participation in the conspiracy and all the other offenses which arose from it. We affirm as to Larry Williams but reverse as to Wilson.

Appellants ground their contention on the fact that during the weekend before the final attempt, they were merely in the motel room while the operation was planned, were sent to purchase a legal pad, were assigned no role in the kidnap/robbery, and merely rode in one of the vehicles used in the attempt. Larry Williams, however, also participated in the earlier plans and attempt, and an amended statement of particulars specified that the conspiracy began by January 1, 1978. Therefore, evidence as to Larry Williams’ prior participation was properly admitted; once part of the conspiracy, he was liable for all subsequent criminal acts unless he withdrew from it. Epps v. State, 354 So.2d 441 (Fla. 1st DCA 1978). There was no suggestion of his withdrawal from the conspiracy. See § 777.04(5), Florida Statutes (1977); U. S. v. Wentland, 582 F.2d 1022 (5th Cir. 1978).

Wilson’s convictions must be reversed, however, because he had no part in the prior planning or attempt. He was present at the motel while the others devised the last attempt, but there was testimony he watched a basketball game on television, and none of the defendants or Fairfax could say Wilson took part in the planning or even heard it. Fairfax said he never had seen Wilson before the March 5 meeting, no role was set out for him, and there was no suggestion Wilson would share in the anticipated proceeds. The undercover policeman testified similarly. The evidence against Wilson, then, simply does not justify his convictions. Honchell v. State, 257 So.2d 889 (Fla.1972); Daly v. State, 297 So.2d 842 (Fla. 2d DCA 1974).

John Thomas Williams raises the other five points on appeal, the first being that the judge erred by denying a requested jury instruction to the effect that when two or more persons conspire with a government agent with the intention that an essential ingredient of the offense be performed only by the agent, such persons may not be found guilty of conspiracy. Appellant relies on King v. State, 104 So.2d 730 (Fla.1958), to support his argument. In King, the police officer’s job was to “make book,” an integral part of the gambling conspiracy. In this case, however, the policeman’s role was merely to make the initial contact with the victim; John Thomas Williams immediately followed him into the house. On these facts, it hardly can be argued that “an essential ingredient of the offense [was] to be performed by, and only by, such government agent . . . .” King, supra, at 733. (Emphasis supplied.)

Appellant next submits that the trial court erred in retaining jurisdiction to review—and veto—any parole release order for the first third of his sentence (he received consecutive sentences totaling 150 years). The court retained jurisdiction pursuant to § 947.16, Florida Statutes (Supp. 1978), which also prevents a defendant from being released by virtue of gain time during the first one-third of his sentence. The statute took effect after the crime was committed, and appellant argues its application to him violates the state and federal provisions against ex post facto laws because both the veto power and the elimination of gain time serve to enhance his sentence.

We reverse the judge’s retention of jurisdiction on these facts because, by applying a statute which did not exist at the time of the offense, the judge in effect extended appellant’s jail time. Another Florida appellate court has reached the same conclusion. Rodriguez v. State, 380 So.2d 1123 (Fla. 2d DCA 1980). When he committed the offense, appellant had a statutory right to earn gain time, a right that could be lost only by bad behavior.

We recognize that the Florida Supreme Court recently stated, in regard to a different statute, that “gain time allowance is an act of grace rather than a vested right and may be withdrawn, modified or denied.” Harris v. Wainwright, 376 So.2d 855, 856 (Fla.1979); see Weaver v. Graham, 376 So.2d 855 (Fla.1979), cert. granted, -U.S. -, 100 S.Ct. 1311, 63 L.Ed.2d 759 (1980). In the instant case, however, § 947.16, by its retrospective application, appears to reflect the type of circumstances the Supreme Court disapproved in Harris, supra, at 857, “in which a new law has been passed eliminating the allowance of gain time in certain situations.” To clarify the question and pursuant to Article V, Section 3(b)(3), Florida Constitution (1980), we certify the following question as being one of great public importance:

Does the retention of jurisdiction by a trial judge and denial of release through gain time pursuant to § 947.16, Florida Statutes (Supp.1978), constitute an ex post facto application of the law when the crimes were committed prior to the statute’s effective date?

We affirm John Thomas Williams’ three remaining points on appeal. Appellant contends his motion to sever should have been granted and. that he was prejudiced by remarks made by the other defendants’ counsel. An examination of the trial transcript, however,' reveals no merit to that argument.

Appellant, citing Williams v. State, 110 So.2d 654 (Fla.1959), next argues that at his second trial, for possession of a firearm by a convicted felon, evidence of his participation in the conspiracy was improperly admitted to show propensity toward criminal acts. But Williams also holds that if evidence of a separate crime is' relevant for any purpose other than to show bad character or propensity, it is admissible. In his second trial, appellant denied planning the kidnap, going to the victims’ door, or possessing a weapon at the time. Given appellant’s denials, evidence of the existence of the conspiracy and of appellant’s motive for possessing the weapon was properly admitted.

Finally, appellant contends the trial court should have granted his motion to dismiss his trial counsel or should at least have held a hearing on the issue. Appellant filed his motion on the ground that the lawyer waived appellant’s right to speedy trial without his permission. State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973), however, held it not error for counsel to waive speedy trial without his client’s approval if the waiver was made in good faith and if the attorney believed the delay would benefit his client. The trial judge did, moreover, hold a hearing on John Thomas Williams’ motion, and the judge simply indicated he believed the attorney’s testimony rather than appellant’s conflicting testimony.

Affirmed in part, reversed in part, with a question certified to the Florida Supreme Court.

ERVIN, SHIVERS and SHAW, JJ., concur.

       Appellants, all black men, decided the best way to enter the victims’ home would be to bring in a white man who could approach the home first, ostensibly on some sort of official business. Fairfax provided an undercover Jacksonville police detective to play that part.


text:
    MARKET FOOD DISTRIBUTORS, INC. and Travelers Insurance Company, Appellants, v. Harold LEVENSON, Appellee.
    No. QQ-150.
    District Court of Appeal of Florida, First District.
    May 7, 1980.
    Rehearing Denied June 6, 1980.
    H. George Kagan of Miller & Hodges, Miami, for appellants.
    Albert E. Harum, Jr. of Harum & Ha-rum, Coral Gables, for appellee.
   ERVIN, Judge.

Market Food Distributors, the employer/carrier, appeals the judge of industrial claims’ finding that claimant Levenson injured his back “by accident arising out of . employment”, when he bent over to pull out a 20-30 pound desk drawer. We reverse. The absence of any evidence that Levenson’s employment contributed to the risk or aggravated his condition is the fatal flaw to his claim for compensation.

Levenson’s claim is controlled by Southern Bell Telephone & Telegraph v. McCook, 355 So.2d 1166, 1168 (Fla.1977), holding that when a claimant suffers from a preexisting condition and is injured in the course of employment, the injury is compensable only if the claimant can show it “arose out of” the employment. Amplifying upon this rule, Commissioner Wentworth, specially concurring in Orange County Board of County Commissioners v. Jordan, IRC Order 2-3785 (April 25, 1979), stated that in order for there to be a causal connection between the employment and the aggravation of a preexisting condition, the employment circumstances must have presented a risk different from those necessarily encountered in non-employment life.

Professor Larson’s analysis of the problem relating to idiopathic cases is helpful. He suggests the problem can best be resolved by considering the legal cause of the injury, and then, its medical cause. 1B A. Larson, Workmen’s Compensation Law, § 38.83 at 7-233 (1980). The inquiry focuses first upon what kind of exertion satisfies the legal test, i. e., whether the injury is one caused by the employment, and, if the exertion is legally sufficient to support compensation, next whether medically it caused the injury. Id. at 7-235. As to the legal test, if the employee brings to the job some personal element of risk unrelated to.^his employment (for example, a> preexisting condition), before the injury can be found compensable, the employment must involve an exertion greater than that normally performed by the employee during his non-employment life. But, if the employee has no prior weakness or disease, any exertion connected with the employment and causally connected with the injury as a matter of medical fact is adequate to satisfy the legal test of causation. In both cases it is still necessary for a claimant to establish that medically the particular exertion causally contributed to the injury. Id. at 7-237. Larson offers the following example:

Suppose Y’s usual job involves no lifting. Suppose he lifts a 20-pound weight on-the-job, and suppose there is medical testimony that this lift caused this heart attack. . . . Under the suggested rule the result would depend on whether there was a personal causal element in the form of a previously weakened heart. If there was not, compensation would be awarded, since the employment contributed something and the employee’s personal life nothing to the causing of the collapse. If there was, compensation would be denied in spite of the medical causal contribution, because legally the personal causal contribution was substantial, while the employment added nothing to the usual wear and tear of life — which certainly includes lifting objects weighing 20 pounds, such as bags of golf clubs, minnow pails, stepladders.(e. s.) Id. at 7-238-239.

Levenson’s injury fortuitously occurred during the course of his employment. The medical testimony revealed that his preexisting, asymptomatic spinal disease, lumbar stenosis, had advanced to the point that an injury could have been triggered at any time during a normal torsional movement, such as rising from bed. His case is thus distinguishable from our recent decision in Cheney v. F. E. C. News Distribution Company, 382 So.2d 1291 (Fla. 1st DCA, 1980), holding the claimant’s injury, caused by a fall on the job, compensable. Although Cheney- had suffered from recurrent symptoms of headaches and dizziness resulting from a noncompensable accident, we observed that his condition could be controlled while at home, bu| not on the job because his employment duties required him to bend, twist and turn. The facts in Cheney, then, were similar to those in State of Florida v. Hendry, IRC Order 2-3786 (April 25, 1979), showing repeated patterns of required activity in the claimant’s job, which differed in degree and frequency from those necessarily occurring outside his employment.

We conclude that the exertion required to pull out the desk drawer was no greater than one which Levenson would necessarily have encountered in normal non-employment life. As in McCook, Levenson suffered from an idiopathic condition which first became symptomatic during the course of employment for reasons extraneous to his job conditions or duties. His injury was therefore not one caused by accident arising out of employment.

REVERSED.

SHIVERS and SHAW, JJ., concur.


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

text:
    UNITED STATES SERVICE INDUSTRIES-FLORIDA, a Florida Corporation, Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. VV-159.
    District Court of Appeal of Florida, First District.
    May 9, 1980.
    Rehearing Denied June 4, 1980.
    Anthony J. O’Donnell, Jr., and Alan S. Gold of Greenberg, Traurig, Hoffman, Li-poff, Quentel.& Wolff, Miami, for petitioner.
    George L. Waas, Tallahassee, for respondent.
   ROBERT P. SMITH, Jr., Judge.

This petition for emergency review of nonfinal administrative action, Rule 9.100, Fla.R.App.P., asserts that the Department of Health and Rehabilitative Services has wrongfully denied petitioner a formal Section 120.57(1) hearing in that the Department has or is about to determine petitioner’s substantial interests by awarding a contract for janitorial services to another bidder, although petitioner’s bid was lower. See Couch Constr. Co. v. Dep’t of Transportation, 361 So.2d 184 (Fla. 1st DCA 1978). Petitioner urges that information which was omitted .from its bid, though required by the invitation for bid, was inconsequential under the circumstances and that petitioner should receive the contract which the other bidder will receive, so it is alleged, on May 9, 1980. We briefly stayed the contract process and required a Department response to an order to show cause. See Solar Energy Control, Inc. v. State Dep’t of Health and Rehab. Services, 377 So.2d 746 (Fla. 1st DCA 1979).

Upon consideration of the petition and the Department’s response, we find that petitioner has not demonstrated, either to the Department by its request for a Section 120.57(1) hearing, or to this Court by its petition for relief, that the proceeding “involves a disputed issue of material fact.” Section 120.57, Florida Statutes (1979). For aught that appears, the significance of the omitted information depends on policies, opinions, or circumstances which may be appropriately heard and evaluated in a Section 120.57(2) informal hearing, which the Department has not refused petitioner and petitioner has not requested. Not every dispute between an agency and an affected person requires formal proceedings for its resolution. Many disputes, of which this seems to be one, can as readily be. determined and made ready for judicial review under Section 120.57(2), which in proper application will afford full relief faster and more conveniently.

The order to show cause is DISCHARGED and the petition is DENIED. A petition for rehearing may be filed but our stay order is immediately VACATED.

McCORD and SHIVERS, JJ., concur.


author: MILLS, Chief Judge.

text:
    David WALLACE, Appellant, v. WALTON CONTEXT BUILDING and United States Fidelity & Guaranty Company, Appellees.
    No. QQ-232.
    District Court of Appeal of Florida, First District.
    May 12, 1980.
    Douglás A. McDuff of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   ON MOTION FOR REHEARING GRANTED

MILLS, Chief Judge.

Wallace, who prevailed on appeal of this workers’ compensation case, moves the Court to reconsider its order denying his attorney an appellate attorney’s fee. We grant the motion, vacate our order and award his attorney an appellate attorney’s fee of $300.

This appeal was perfected before jurisdiction was vested in this Court and was transferred here on 1 October 1979 pursuant to Section 440.271, Florida Statutes (1979). The Industrial Relations Commission had no rule requiring the filing of a motion for attorney’s fee. There is no rule in the Florida Workers’ Compensation Rules of Procedure, 374 So.2d 981 (Fla.1979). By our decision in Fla. Dept. Comm., Div. of Risk Management v. Davies, 379 So.2d 1313 (1980), we established the requirement that for an employee to be awarded an appellate attorney’s fee he or she must file a motion requesting the fee no later than the time required for the filing of the reply brief.

For the future guidance of attorneys, we hold that in all appeals perfected before 1 October 1979 an employee seeking an appellate attorney’s fee may file a motion requesting the fee at any time before this Court loses jurisdiction of the case. This rule will also apply to appeals taken between 1 October 1979 and 13 February 1980, provided the reply brief was filed or the time for filing had expired before 13 February 1980. Our decision in Fla. Dept. of Comm. Div. of Risk Management v. Davies applies to appeals taken after 13 February 1980 and to those taken between 1 October 1979 and 13 February 1980 where the reply brief was not filed or the time for filing had not expired before February 1980.

Motion for rehearing is granted, order denying appellate attorney’s fee is vacated, and Wallace’s attorney is awarded an appellate attorney’s fee of $300.

McCORD and BOOTH, JJ., concur.


text:
    Mark Stephen MAHLA, Appellant, v. STATE of Florida, Appellee.
    No. MM-499.
    District Court of Appeal of Florida, First District
    May 13, 1980.

      John D. Fernandez, P.A., and Ronald P. Teevan of Cooper, Rives, Strohauer & Tee-van, P.A., Clearwater, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Mahla appeals his judgment of conviction for possession of more than 100 pounds of marijuana with intent to sell following a plea of nolo contendere reserving the right to appeal the denial of his motion to suppress. Points 1 and 5 merit brief discussion.

As to Point 1, which raises several arguments, it was proper for Inspector Pease to stop Mahla’s truck and to request inspection. § 570.15, Fla.Stat. (1977); Sharpe v. State, 370 So.2d 42 (Fla. 1st DCA 1979). Further, although Pease smelled marijuana during the inspection, he retained authority to subsequently arrest Mahla, and to seize him and the truck, for bypassing the agricultural inspection station. § 570.15(2), Fla.Stat. (1977). After-wards, a search warrant for marijuana was prepared, with Pease as affiant, which-directed the “sheriff or any of his duly constituted agents” to search the detained truck for marijuana.. Deputy Denmark read the warrant to Mahla and then Pease aided the deputy sheriff in searching and unloading the truck of approximately 1270 pounds of marijuana. Mahla was then arrested on the possession charge. Contrary to Mahla’s assertion, this procedure was in accordance with law. §§ 933.04-.08, Fla.Stat. (1977). Compare Pederson v. State, 373 So.2d 367 (Fla. 1st DCA 1979) (search for agricultural products by the inspector was not supported by probable cause under chapter 570); State v. Webb, 378 So.2d 884 (Fla. 1st DCA 1979) (search warrant needs to state probable cause for search of agricultural products when obtained and executed by the inspector).

Pease’s claim, that he smelled marijuana based upon his “training and experiences,” supported a finding of probable cause for the issuance of the warrant. State v. Knapp, 294 So.2d 338 (Fla. 2d DCA 1974), cert. denied, 302 So.2d 415 (Fla. 1974). See Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975). Thus, we reject the argument that Pease’s training had to be described with particularity in the warrant to support probable cause. Even when an affiant relies upon the information given by an informer, the warrant need not detail every piece of evidence supporting each factual claim. See Chadwick v. State, 358 So.2d 901 (Fla. 1st DCA 1978).

Finally, regardless of Pease’s motive for arresting appellant, we do not find his “pretextual arrest” theory applicable because it is clear that the arrest, otherwise valid, did not provide any basis for the warrant authorizing the search and seizure. Rather, the only practical effect of the arrest was to prevent appellant from simply driving off with over 1200 pounds of contraband. See generally State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971), affirmed on other grounds, 273 So.2d 753 (Fla. 1972).

As to Point 5, although it was technically improper to have a blanket bond rather than an individual bond cover Pease, the bond substantially complied with the statutory prerequisites and therefore Pease lawfully performed his duties thereunder. § 570.151(1), Fla.Stat. (1977). See generally Carlton v. Constitution Indemnity Company, 117 Fla. 143, 157 So. 431, 435 (Fla. 1934); 1 Anderson on Sheriffs, Coroners, and Constables, § 19.

AFFIRMED.

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