author: BARKDULL, Judge. FERGUSON, Judge

text:
    SUN BANK OF MIAMI, Bal Harbour, Florida, Appellant, v. Rozanne G. LESTER, Appellee.
    No. 80-1759.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Oct. 13, 1981.
    Floyd, Pearson, Stewart, Richman, Greer & Wéil and David W. Bianchi and Ray H. Pearson, Miami, for appellant.
    Krause, Reinhard & Linden, P.A. and Ira Pozen, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   BARKDULL, Judge.

Defendant, Sun Bank of Miami, brings this appeal from a final judgment entered in the Dade County Circuit Court in favor of the plaintiff, Lester. Plaintiff has cross-appealed, urging that there was an inadequate award of attorney fees.

Plaintiff, a licensed real estate salesperson, contracted for the purchase of a condominium unit. At the time of signing, on January 17,1979, an initial $7,000.00 deposit was made. The contract called for an additional deposit by May 1,1979. The contract read, in part, as follows:

“17. DEFAULTS. If the Buyer shall fail to do promptly any of the things required of him herein within the time allowed therefor, this agreement may, at the option of the Seller, be deemed terminated and all of the Buyer’s payments made hereunder shall be deemed and considered as liquidated and agreed upon damages and all obligations and duties of the parties hereto shall thereupon terminate; provided, that if the default consists of an act or omission other than the failure to close when specified or failure to pay monies when required, the Buyer shall have ten (10) days from time of notification of default within which to cure the same. It is agreed by the parties that the apartment and its appurtenances are a part of a large development and that the exact amount of damages suffered by the Seller upon the default hereunder by the Buyer is incapable of practical ascertainment. The Escrow Agent upon being notified by the Seller in writing that the Buyer has defaulted shall forthwith pay to the Seller all of the deposits and interest thereon and the Escrow Agent shall have no duty or obligation to make an independent investigation, determination or confirmation of the alleged default. Buyer agrees that Seller’s sole liability and obligation to Buyer in the event Seller fails to complete construction or otherwise fail to close this transaction is the return of the Buyer’s deposits together with interest thereon. No action of specific performance of this agreement shall lie in favor of either party. Time is of the essence in this agreement. In the event that Seller is required to institute or defend any action by or against the Buyer by reason of Buyer’s breach of any covenants herein, Seller shall be entitled to recover reasonable attorneys’ fees and costs.”

When the additional deposit had not been paid, the defendant’s agent notified the plaintiff by telephone that the initial deposit was being returned. The plaintiff’s offer to pay the additional deposit forthwith was refused. A May 3, 1979 check for the additional deposit, accompanied by a May 9 transmittal letter, was received by the defendant on May 16. However, the defendant refused to reinstate the contract and the plaintiff then brought the present action for specific performance and declaratory relief. The defendant answered and counterclaimed for attorney fees. After both parties moved for summary judgments, the trial court granted the plaintiff’s motion, reserving its ruling on the questions of damages, costs, and attorney fees. Following a non-jury trial, the summary judgment was incorporated into a final judgment, awarding the plaintiff $6,500.00 in attorney fees and granting specific performance.

The appellant contends it was error to hold that as a matter of law the plaintiff was entitled to cure her default and enforce the contract, despite her waiver of notice and her non-performance. First of all, the May 1st deadline for the additional deposit was crucial because this was a “time is of the essence” contract. Secondly, the plaintiff should not have been permitted to cure her default because the default resulted from her own negligence, and the lack of pre-termination notice is inapplicable because the contract specifically waived notice of intention to terminate. The appellant also contends specific performance was improper, because the contract waived the specific performance remedy. See: Dillard Homes, Inc. v. Carroll, 152 So.2d 738 (Fla. 3d DCA 1963). Further, the appellant contends that the award of a $6,500.00 attorney fee to the plaintiff was excessive where no facts were presented to support such an award.

We reverse. The contract made time of the essence; it clearly indicated that no notice would be given if a default was occasioned by the “failure to pay monies when required”. The provision waiving specific performance as a remedy was valid. Dillard Homes, Inc. v. Carroll, supra; Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965). The buyer admittedly failed to make the additional deposit as required, by May 1, 1979. The seller declared a default; the buyer’s attempt to cure the default by her actions came too late. See: Dickson v. The Ridge Realty Company, 141 Fla. 807, 194 So. 241 (1940); Richards v. Hasty, 158 Fla. 459, 28 So.2d 876 (1947); Savage v. Horne, 49 So.2d 329 (Fla.1950); compare: Lake Towers, Inc. v. Axelrod, 216 So.2d 86 (Fla. 4th DCA 1968); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980).

The appellee relies principally upon the cases of Lance v. Martinez-Arango, 251 So.2d 707 (Fla. 3d DCA 1971), and Blanton Lake Properties, Inc. v. WWW, Ltd., 301 So.2d 485 (Fla. 2d DCA 1974). The first case is distinguishable because the buyer tendered the payment before any default was declared and, also, the seller attempted to forfeit the buyer’s deposit, whereas in the instant case the deposit was returned. In the second case, the subsequent payment was tendered on time but there was a scrivener’s error in the check: the numbers stated $332,000.00 but the words were for Three Hundred Thirty-Two Dollars. Upon being put on notice, the maker of the check attempted to correct the scrivener’s error within three days. On the facts, this case is not similar to the one sub judice.

Therefore, the summary judgment and final judgment in favor of the buyer are reversed. The award of attorney’s fees to the buyer is reversed, and the cause is remanded to the trial court to consider the award and the amount of attorney’s fees, if any, to the seller on its counterclaim.

Reversed and remanded, with directions.

FERGUSON, Judge

(dissenting).

I dissent on the grounds that under the facts of this case, a strict enforcement of the provisions of paragraph 17 of the sales agreement unreasonably and unjustly penalizes Lester.

This case involves a pre-construction purchase of a condominium unit which is governed by Florida Condominium Law, Chapter 718, Florida Statutes (1979). The purchase price of the condominium unit was $126,000.00 and by the time of the trial it is undisputed that the same unit had a value of $225,000.00. By a mortgage rider attached to and made part of the sales agreement, the developers were to select the mortgage lender and give written notification to the buyer for the purpose of executing all applicable documents necessary to secure financing. At the time of default, the developer had yet to notify buyer that a mortgage lender had been selected. By the terms of the sales agreement, the completion of construction and closing date was estimated to be February, 1980, nine months after the subject deposit was due. No part of the deposit was available for use by the developer as § 718.202, Florida Statutes (1979) requires that the entire deposit be maintained in an interest bearing escrow account until closing with a member of the Florida Bar as escrow agent.

It is clear that under the facts of this case, seller has suffered no damages by buyer’s two day delay in tendering the balance of deposit due. To the contrary, seller has the potential of recognizing large profits by refusing the prompt tender of buyer’s late payment. Here the majority’s rigid enforcement of the “time is of the essence” clause will result in enforcing an excessive penalty in the unjust forfeiture of Lester’s right to purchase the condominium. See 3A Corbin, Contracts, § 715 (1960); Restatement, Contracts (2d), § 242, Comment d (such stock phrases as “time is of the essence” do not necessarily have this effect although they are to be considered along with other circumstances).

Finding no material breach under the circumstances of this case, and that the forfeiture would be inequitable, I would not enforce the “time is of the essence” provision of the contract.

      . While I agree that a default has technically occurred, see, e. g., Richards v. Hasty, 158 Fla. 459, 28 So.2d 876 (1947) (vendor must communicate intent to declare default), I would pre-elude enforcement of the contractual provision on the grounds of equity. See 3A Corbin, Contracts, infra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Warren William McCLISH, Appellant, v. STATE of Florida, Appellee.
    No. 81-90.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 1981.
    James B. Gibson, Public Defender and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellant’s contention that section 951.22(1), Florida Statutes (1979) under which he was charged because a handcuff key was found on his person while he was a prisoner, is unconstitutionally vague, is without merit. The statute meets the void-for-vagueness test set forth in Sanicola v. State, 384 So.2d 152 (Fla.1980); Russ v. State, 400 So.2d 1314 (Fla. 5th DCA 1981).

The appellant has not shown an abuse of the trial court’s discretion in denying his attorney the right to question prospective jurors on voir dire about their personal television habits. Zamora v. State, 361 So.2d 776 (Fla.3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979).

AFFIRMED.

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . § 951.22(1), Florida Statutes (1979) provides:
      It is unlawful except through regular channels as duly authorized by the sheriff or officer in charge to introduce into or possess upon the grounds of any county detention facility ... any of the following articles which are hereby declared to be contraband for the purposes of this act, to-wit: ... any instrumentality of any nature that may be or is intended to be used as an aid in effecting or attempting to effect an escape from a county facility.


author: SCHEB, Chief Judge.

text:
    Barry BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 81-55.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 1, 1981.
    Jack D. Hoogewind, Ridge Manor, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant, Barry Bowen, was tried by jury and convicted of attempted burglary. Bowen contends the court erred in failing to suppress certain incriminatory statements that he made after he had asserted his right to remain silent. We agree and reverse.

Bowen was charged with burglary of the Majik Market, a convenience store in Pasco County. At the scene of the crime, he was given his Miranda warnings, after which he refused to answer questions asked by the arresting officer. Subsequently, another officer, Detective Marco Stanley, arrived at the scene and questioned him. Bowen initially refused to disclose his name. However, when Detective Stanley told him that without his name bail could not be posted, Bowen revealed his name and disclosed that he was on parole. He then stated that he did not wish to talk about the burglary. Nonetheless, Detective Stanley asked the appellant how he arrived at the scene, and Bowen responded that he came to the Majik Market with the codefendant whom he knew. Bowen moved to suppress this statement before Stanley testified, but the court denied the motion and admitted the detective’s testimony of Bowen’s statements.

Once a person in custody has asserted the right to remain silent, any statements obtained from that person are admissible only if the interrogating officer has scrupulously honored the accused’s right to remain silent. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Moreover, where an accused who has refused to discuss a crime subsequently makes an incriminating statement, the state has the heavy burden of showing the accused knowingly waived his right to remain silent. State v. Dixon, 348 So.2d 333 (Fla. 2d DCA 1977). To establish a waiver under these circumstances, the state must demonstrate that the interrogation was terminated at the accused’s request and was resumed only when the accused has indicated his desire to make a statement. Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969).

The rule adopted in Michigan v. Mosley protects a suspect from coercion by the police. In light of the relative positions of the police and the suspect in an interrogation situation, Florida cases have recognized that relatively little pressure by the police may overcome a suspect’s will to remain silent. Breedlove v. State, 364 So.2d 495 (Fla. 4th DCA 1978); Jones v. State, 346 So.2d 639 (Fla. 2d DCA 1977); Webber v. State, 305 So.2d 235 (Fla. 2d DCA 1975).

Jones demonstrates that courts carefully scrutinize the actions of interrogating officers where a defendant has asserted his right to remain silent. There, the defendant was arrested and given Miranda warnings. At trial the arresting officer testified that he asked the defendant if he understood those rights and the defendant responded that he did not want to say anything. The officer admitted that he continued to question the defendant who subsequently made inculpatory statements. This court held the admission of these statements violated the defendant’s right to remain silent and reversed the defendant’s conviction.

In the instant case, Detective Stanley continued to question Bowen concerning the burglary after he had stated that he did not wish to discuss it. In addition, the state failed to demonstrate any subsequent waiver by Bowen. Therefore, since the detective failed to scrupulously honor the defendant’s right to remain silent, the trial court erred in admitting these inculpatory statements.

In view of our opinion, we need not discuss appellant’s other points. However, since we are remanding for a new trial, we caution the state to observe the principle elucidated in Clark v. State, 363 So.2d 331 (Fla.1978), that there be no reference during trial to the defendant’s right to remain silent. See, e. g., Tindall v. State, 395 So.2d 289 (Fla. 5th DCA 1981); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979); Davis v. State, 356 So.2d 1252 (Fla. 4th DCA 1978).

Accordingly, we reverse appellant’s conviction and remand this cause for a new trial.

BOARDMAN and OTT, JJ., concur.


text:
    Roy W. CUMMINGS, Jr., and Carol Ann Cummings, Petitioners, v. Carl SINE and Timothy Ross Sine, Respondents.
    No. 81-884.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 5, 1981.
    John F. Stanley of Vega, Brown, Nichols, Stanley & Martin, Naples, for petitioners.
    Ronald Napier of Napier & Donovan, Naples, for respondents.
   SCHEB, Chief Judge.

Petitioners, Roy W. Cummings, Jr. and Carol Ann Cummings, his wife, seek a writ of certiorari to review the trial court’s order granting respondents’ motion for leave to interview jurors. An interview would be improper, they urge, because it would necessarily involve an inquiry into the thought processes of the jurors. We agree and grant the writ.

Petitioners sued respondents, Carl and Timothy Sine, to recover damages arising out of an accident in which the petitioner, Roy W. Cummings, Jr., was injured while jogging. His wife, Carol Ann, sought compensation as a derivative claimant. The jury awarded Mr. Cummings $186,000 and compensated his wife in the amount of $20,-000. However, the jury found that Mr. Cummings was twenty percent at fault in the accident. Accordingly, the trial court reduced the jury award by twenty percent and entered a final judgment of $148,800 for Mr. Cummings and $16,000 for his wife. The jury was polled and each juror acknowledged the correctness of the verdict.

Respondents subsequently filed a motion to interview the jurors pursuant to Florida Rule of Civil Procedure 1.431(g), which allows a party to move for an order permitting an interview of jurors where that party believes the verdict may be subject to legal challenge. They contended the verdict was subject to challenge because the final award totaled $164,800, almost the precise figure petitioners’ counsel recommended to the jury as compensation for Mr. Cummings. Respondents claimed that the jury must have adjusted its award so that when the court reduced it by twenty percent, the final figure would equal the amount suggested by the petitioners. Thus, respondents argued that the jury did not follow the court’s instructions to the effect that while it should determine the percentage of the parties’ negligence, the court would reduce any judgment accordingly. After hearing argument by counsel, the trial judge concluded “that there could be a possibility that they [the jurors] did not follow the court’s instructions as to comparative negligence” and granted the respondents’ motion.

Because of the great sanctity accorded jury verdicts, courts have traditionally been reluctant to allow jurors to be questioned concerning them. Thus, where the record does not reveal any misconduct or irregularity on the part of any juror, the case was fairly and impartially tried and each juror is polled and announces the verdict to be his or hers, it is improper to allow jurors to be interviewed. National Indemnity Co. v. Andrews, 354 So.2d 454, 455 (Fla.2d DCA 1978). Moreover, while courts allow interrogation of jurors where the movant has demonstrated an impropriety extrinsic to the verdict, they do not permit an inquiry into the individual thought processes, calculations or judgments of jurors. This is true even where there is some evidence on the face of the verdict that the jury failed to follow the court’s instructions. Velsor v. Allstate Insurance Co., 329 So.2d 391 (Fla.2d DCA 1976).

In the instant case the respondents assert that the jurors usurped the trial court’s function by raising their verdict by the amount of the reduction which they understood would be made by the trial court due to Mr. Cummings’ comparative negligence. To determine whether the jury calculated its verdict as alleged will necessarily involve inquiring into each jur- or’s reasoning process and motives. This is an area of judgment which must remain inviolate. Moreover, the trial court did not question the size of the verdict nor express any doubt that it was supported by substantial competent evidence. Hence, it was improper for the court to have granted respondents’ motion.

Accordingly, we grant certiorari and vacate the order allowing the jurors to be interviewed.

HOBSON and GRIMES, JJ-, concur.

      . In his closing argument on behalf of Mr. Cummings, petitioners’ counsel stated “and when I add these all up, I get $165,050. That doesn’t include one dime for future medical bills.” Counsel requested a separate verdict for Mrs. Cummings but did not specify any amount.

      . The jury awarded the husband and wife a total of $206,000. Twenty percent of $206,000 is $41,200. $206,000 reduced by $41,200 would equal $164,800, which is very close to the amount suggested by petitioners’ counsel as compensation for the husband.


author: McCORD, Judge.

text:
    Steve ADAMS, Appellant, v. LAKE CITY COMMUNITY COLLEGE, Appellee.
    No. YY-127.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.

      Julian E. Collins of Collins & Griffin, Lake City, for appellant.
    Frank M. Gafford, Lake City, for appel-lee.
   McCORD, Judge.

Appellant appeals from the action taken by the District Board of Directors, Lake City Community College, in finding that he was insubordinate to his superior and in recording that finding in his personnel record. The case arose after appellant, a microbiology instructor at the college, in response to a suggestion by his dean that he hold his lectures in Galloway Auditorium, stated: “Hell, no, I won’t do it, and I’ll fight you all the way if you try to make me...” We have considered appellant’s contention that his remarks to the dean did not constitute insubordination but find it to be without merit. Muldrow v. Board of Public Instruction of Duval County, 189 So.2d 414 (Fla. 1st DCA 1966). We have also considered the recent opinion of this Court in Smith v. School Board of Leon County, Florida, 405 So.2d 183 (Fla. 1st DCA 1981), and find that case not pertinent to the issue here since the court there was dealing with gross insubordination as defined by rule of the school board.

AFFIRMED.

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


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Clyde V. HANKERSON, Appellee.
    No. AB-60.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.
    John L. Pearce, Tallahassee, for appellant.
    James D. White, Tallahassee, for appel-lee.
   PER CURIAM.

On appeal is an order of the Career Service Commission reinstating an employee, Clyde Hankerson, following his dismissal by the Department of Health and Rehabilitative Services (“HRS”). The Career Service Commission order does not reflect compliance with Section 110.309, Florida Statutes (1979), therefore, we reverse and remand.

Hankerson was employed by HRS as a dental assistant at Sunland. Simultaneously, he held a maintenance job at Godby High School. Hankerson had permission to arrive at Godby after leaving Sunland at 4:30 P. M., even though maintenance work began at 2:00 P. M. at Godby. Hankerson’s employers became suspicious that he and another man employed at both places were falsifying time records. It was believed that one of the men left Sunland early and checked both men in at Godby, while the other stayed and checked both men out at Sunland at 4:30 P, M. During an investigation, Hankerson was observed checking in at Godby before 4:30 P. M. on several occasions. A comparison of time records showed that on numerous occasions, the two were clocked in at both places at the same time. Both men were fired from their jobs. Hankerson appealed his firing from Sun-land by HRS to the Career Service Commission.

At the hearing before the Career Service Commission, evidence was presented showing that Hankerson had been given a good employee evaluation; in fact, his supervisor had stated he had potential to become an outstanding employee. The Chairman of the Commission asked the personnel director of Sunland why Hankerson had not been confronted with the suspicious early on in the investigation so that the employee could be salvaged. The personnel director replied that upon being confronted with the discrepancies in time records, Hankerson offered no explanation. In addition, the officials had waited until sufficient information was gathered before taking action.

The Career Service Commission entered an order essentially reflecting the facts stated above and concluding that HRS had proven the charges on which Hankerson’s dismissal was predicated. The Commission went on to state that Hankerson had been doing a good job in a difficult position, one which was difficult to fill, and that he had been shown that such behavior would not be tolerated in the future. The Commission then ordered HRS to reinstate Hankerson without back pay. In effect, the Commission reduced the dismissal to a suspension and HRS appealed. Section 120.68(8) or 120.68(9), Florida Statutes, provides a basis for review in this court. Cf. Ehrenzeller v. Department of Health and Rehabilitative Services, 390 So.2d 181 (Fla. 2d DCA 1980).

Under the applicable statute, Section 110.309, Florida Statutes (1979), the Career Service Commission conducts a de novo hearing. Department of Natural Resources v. Edrington, 395 So.2d 577 (Fla. 1st DCA 1981). The Commission has several alternative courses which it may follow with regard to disciplinary action taken by an agency, each based upon a determination of just cause:

110.309 Procedure with respect to suspensions and dismissals.—
(2) Upon a finding that just cause existed for the suspension or dismissal, the commission shall affirm the suspension or dismissal.
(3) Upon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay.
(4) Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its discretion:
(a) Reduce a dismissal to a suspension for such time as the commission may fix; or

(b) Reduce the period of a suspension. At first glance, subsections (2) and (4) appear somewhat contradictory; however, the subsections can be read so that neither provision is without meaning. Read together, these two subsections indicate that if the Commission determines that just cause existed for the particular action taken by the agency, whether suspension or dismissal, the Commission must affirm. If, however, the Commission determines that just cause existed for some disciplinary action, but not for the particular action taken by the agency, the Commission has discretion to modify the action, as set forth in 110.309(4)(a) or (b). Of course, if the Commission determines that just cause did not exist for any disciplinary action, it may order the reinstatement of the employee. Section 110.-309(3).

The difficulty in this case is that the Commission made no finding whatsoever regarding the existence of just cause. The only basis given for modifying the action taken by HRS was that Hankerson had been doing a good job in a difficult position at Sunland. We cannot imply from that statement a determination that just cause did not exist for the dismissal, particularly when the Commission expressly found that HRS had proven the charges on which the dismissal had been based. The Commission must state in the order whether it finds, based on the existing record, that just cause existed for the dismissal, and if so, the Commission must affirm the decision of HRS. Section 110.309(2), Florida Statutes. If the Commission finds that just cause existed for some disciplinary action, but for suspension rather than dismissal it should clearly state as much in order that this court may review the Commission action and determine whether the Commission acted within its discretion and in compliance with the statute.

Reversed and remanded for entry of a final order, based on the existing record, in light of this opinion.

McCORD, SHIVERS and THOMPSON, JJ., concur.


text:
    David FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 79-2333.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Rehearing Denied Oct. 21, 1981.
    Charles L. Brown of Brown & Pickett, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. State v. Casesa, 392 So.2d 1022 (Fla.5th DCA 1981); Manner v. State, 387 So.2d 1014 (Fla.4th DCA 1980); State v. Segura, 378 So.2d 1240 (Fla.2d DCA 1979).

DOWNEY and GLICKSTEIN, JJ., and DANIEL S. PEARSON, Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    Joseph H. PADGETT, Appellant, v. STATE of Florida, Appellee.
    No. YY-495.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.
    Rehearing Denied Oct. 22, 1981.

      Ronald A. Dion, Entin, Schwartz, Angert, Dion & Broudy, North Miami Beach, Clyde M. Taylor, Jr., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence imposed for the offense of unlawful compensation, § 838.-016, Florida Statutes. We affirm the order appealed.

Among other contentions, appellant alleges error based upon the court’s denial of a motion to suppress tape recordings made from the warrantless interception, pursuant to § 934.03(2)(c), Florida Statutes, of conversations between appellant and a police informant. The tapes include conversations which occurred in a motel room appellant used in furtherance of his illegal activity. The record indicates that upon being contacted at his private residence appellant arranged meetings at the motel room.

Article I, § 12, Florida Constitution, precludes the warrantless interception of private conversations conducted in the subject’s home. State v. Sarmiento, 397 So.2d 643 (Fla.1981); also see Hoberman v. State, 400 So.2d 758 (Fla.1981). However, in the circumstances of the present case we reject appellant’s suggestion that his motel room was the “functional equivalent” of a home, and we thus conclude that Sarmiento and Hoberman are inapplicable in this instance.

The order appealed is affirmed.

BOOTH and SHAW, JJ., concur.


text:
    James Patrick GILLESPIE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2233.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks reversal of his conviction of possession of Methaqualone. Appellant contends that the trial court erred in denying the motions to suppress evidence seized from an automobile belonging to appellant since such search was unlawful and the arrest of appellant and his subsequent statements were the direct products of the unlawful seizure under the Fourth and Fourteenth Amendments of the Constitution of the United States.

Appellant strongly argued that Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979), cert. den., app. dism., 386 So.2d 642 (Fla.1980), is controlling. We cannot agree. We reject the contention on the grounds that (1) the initial stop was proper under State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), aff’d, 387 So.2d 963 (Fla.1980); (2) the police officer directed appellant to pull over to an area where the appellant was intending to go; (3) the search was conducted by a private employer; unlike in Pomerantz the police officer here took no active participation in the search.

We have carefully considered all of appellant’s contentions in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. McNamara v. State, 357 So.2d 410 (Fla.1978); Bernovich v. State, 272 So.2d 505 (Fla.1973); Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975).

Affirmed.


text:
    Freddie Alan HENDERSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-1079, 80-1528.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Bennett H. Brummer, Public Defender and Edward McHale, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed on the authority of Borden v. State, 402 So.2d 1176 (Fla.1981).


author: SCHWARTZ, Judge.

text:
    BRICKELL TOWNHOUSE, INC., a Florida Corporation, Appellant, v. Howard HIRSCHFIELD, Appellee.
    Nos. 80-1097, 80-1457 and 80-1557.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Rehearing Denied Oct. 16, 1981.

      Richard & Richard, Miami Beach, Po-dhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vincent E. Damian, Jr., Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

Howard Hirschfield was a tenant at an apartment building owned by the Brickell Townhouse, Inc., when it announced its plans to “go condo,” a process it ultimately completed in the latter part of 1979. The landlord sued in the Dade County Court to evict Hirschfield for nonpayment of rent. Hirschfield counterclaimed for specific performance of an alleged agreement, made in the course of the condominium conversion, to convey his apartment to him, whereupon the cause was transferred to the circuit court for trial and disposition. The court granted the prayer for eviction but stayed the effect of that order indefinitely because of its conclusion that Hirschfield had established his right to specific performance. In case no. 80-1097, Brickell Townhouse appeals from the latter determination and, in case nos. 80-1457 and 80-1557, from subsequent ancillary orders requiring it to sell Hirschfield an underground parking space at the building. We reverse.

The evidence presented below fails entirely to establish the existence of an agreement for the sale of the apartment, to the essential terms of which both sides agreed. To the contrary, any offer that Brickell made to convey was met, not by Hirschfield’s acceptance, but by a counteroffer, with significantly altered provisions, with which, in turn, Brickell did not concur. Under these circumstances, no binding contract of sale and purchase ever came into effect, and there was therefore no agreement which was legally enforceable in any fashion, much less by the extraordinary remedy of specific performance. Mehler v. Huston, 57 So.2d 836 (Fla.1952); Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947); Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1910); Bucki v. Seitz, 39 Fla. 55, 21 So. 576 (1897); Fox v. The Sails at Laguna Club Development Corp., 403 So.2d 456 (Fla.3d DCA 1981); Mintzberg v. Golestaneh, 390 So.2d 759 (Fla.3d DCA 1980); Kopiin v. Bennett, 155 So.2d 568 (Fla. 1st DCA 1963). Moreover, the fact that Brickell did not execute any such agreement in writing precludes enforcement because of the statute of frauds. Section 725.01, Florida Statutes (1979); Rundel v. Gordon, 92 Fla. 1110, 111 So. 386 (1927); Fox v. The Sails at Laguna Club Development Corp., supra.

Upon these conclusions, which make it unnecessary to consider the other contentions advanced by the appellant, the judgment and orders under review are reversed and the cause remanded with directions to dismiss the counterclaim with prejudice and to require execution of the judgment of eviction forthwith.

Reversed and remanded.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Eugene WRIGHT, Appellee.
    No. 80-2279.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Herbert Smith, Sp. Asst. Public Defender, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The trial court dismissed the information charging defendant with second degree murder. We reverse on the authority of Enmund v. State, 399 So.2d 1362 (Fla.1981). Defendant concedes that his challenge, predicated upon his remaining outside the apartment while his co-defendant committed their planned robbery, was vitiated by the supreme court ruling.

We also reverse the court’s order suppressing defendant’s statements. Defendant’s first statements were made before he became a suspect in the matter under investigation and while he was free to leave. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); State v. Clark, 384 So.2d 687 (Fla. 4th DCA), petition for review denied, 392 So.2d 1372 (Fla.1980); State v. Paschal, 358 So.2d 73 (Fla. 1st DCA), cert. denied, 360 So.2d 1249 (Fla.1978). As soon as he became a suspect, he was advised of his rights. His subsequent statements were therefore admissible. Suppression on the ground that defendant was deluded concerning his custodial status is not supported by the circumstances.

The appealed orders are reversed, the information is reinstated, and the cause is remanded for further proceedings.


author: BARKDULL, Judge.

text:
    Terry HILL, a minor by and through his mother, guardian and next friend Katie Mae Hill and Katie Mae Hill, individually, Appellants, v. ALLSTATE INSURANCE CO., and Merritt Alonso Sims, Appellees.
    No. 80-2450.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Preddy, Kutner & Hardy and G. William Bissett and Charles W. Rice, Miami, for appellants.
    Underwood, Gillis, Karcher, Reinert & Valle and Thomas R. Trompeter, Miámi, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The plaintiffs, Terry Hill (a minor) and his mother, Katie Mae Hill, appeal from a final judgment on a jury verdict, entered in favor of the defendants, Allstate Insurance Co. and Merritt Alonso Sims.

The appellants contend it was error to allow the investigating police officer to testify concerning what plaintiff, Terry Hill, told him, in that such statements made by Hill at the scene of the accident fall within the “accident report” privilege afforded by Section 316.066, Florida Statutes (1977), which provides that “No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident.” See, generally, Wise v. Western Union Telegraph Co., 177 So.2d 765 (Fla. 1st DCA 1965); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 1st DCA 1961).

The appellees contend there was no error in allowing the investigating police officer to testify concerning what plaintiff, Hill, told him, where the statement was made at the scene of the accident during the course of the officer’s investigation, because the privilege under Section 316.066, Florida Statutes (1977) was waived. Compare: Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974) and Leisure Group, Inc. v. Williams, 351 So.2d 374 (Fla. 2d DCA 1977).

The plaintiffs did not waive the statutory privilege simply by calling the police officer as a witness and questioning him solely as to the location of the accident, his dispatch and arrival times, what he observed at the scene, and what the weather conditions were.

Therefore, the final judgment under review is reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.

      . The appellees also contend that the privilege was waived by the plaintiffs’ counsel questioning the investigating officer about the location of the vehicles immediately prior to the accident, on redirect examination. We find no merit in this contention; this only occurred after his original objection had been overruled. See; Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977); Carbone v. Coblentz, 132 So.2d 629 (Fla. 3d DCA 1961); Lovette v. State, 152 Fla. 495, 12 So.2d 168 (1943).


author: DAUKSCH, Chief Judge. /s/ Uriel Blount. Jr. Uriel Blount, Jr., Circuit Judge

text:
    Michael Joseph BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-982.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Michael Joseph Brown, pro se.
    No appearance for appellee.
   DAUKSCH, Chief Judge.

In a most comprehensive Order the trial judge determined this appellant was not entitled to relief under Rule 3.850, Florida Rules of Criminal Procedure. Would it that all such orders were so well done. We quote in full and affirm the order.

ORDER

The “Motion for Post Conviction Relief”, as authorized and provided for under Rule 3.850 of the Florida Rules of Criminal Procedure, as filed by the above-named Defendant, this day coming to the attention of the Court and in a review of the motion and the files and records in this case, the Court finds that the same conclusively show that the Defendant is entitled to no relief on the following findings based thereon:
(1) Defendant’s conviction herein is presumed to be valid. Meeks v. State, 382 So.2d 673, 675 (Fla.1980).
(2) The allegations of Paragraph One through Four and Paragraph Nine were or could have been raised on direct appeal and thus will not support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980). As to grounds three and nine, defendant’s allegations concerning the admissability of his confession and the Court’s formal charges to the jury were assignments of error raised on direct appeal. Brown v. State, 321 So.2d 637 (First District Court of Appeal, 1975). (See a copy of Assignments Of Error attached hereto and made a part hereof.) As to grounds one, four and part of ground seven, Defendant’s competency for trial was determined by the Court on January 3, 1974, pursuant to two psychiatric evaluations and a hearing. (See a copy of Order of determination of competency attached hereto and made a part hereof.) Further, Rule 3.214 of the Florida Rules of Criminal Procedure provides that a Defendant who is determined to be competent to stand trial is not automatically deemed incompetent because his satisfactory mental condition is dependent upon medication. As to ground two, the jury found the Defendant guilty as charged to the exclusion of every reasonable doubt, specifically, rejecting a verdict of not guilty by reason of insanity. The jury determination is subject for direct appeal, not collateral attack. Adams v. State, supra.
(3) Defendant has failed to make a prima facie showing that his counsel failed to render reasonably effective assistance of counsel to his prejudice, as required by Meeks v. State, 382 So.2d 673 (Fla.1980). Whether to make a motion for change of venue is a judgment matter not subject to collateral attack. Stallings v. State, 319 So.2d 690 (First District Court of Appeal, 1975). Certainly, Defendant’s allegation does not show “judgment so irresponsibly exercised as to constitute inadequate representation.” Mauldin v. State, 382 So.2d 844 (First District Court of Appeal, 1980). The alleged omission of counsel was not substantial and no prejudice was shown. Washington v. State, 397 So.2d 285 (Fla.1980).
(4) Defendant’s allegation that the Court erred in not sequestering jury is a mere assertion, nothing more than a conclusion of the Defendant unsubstantiated by his motion and the records and files of the case.
(5) Defendant does not allege that the State knowingly used perjured testimony, nor did Defendant support his allegations that perjured testimony was used with substantiating documentary evidence or affidavits, as required. Fuller v. Wainwright, 238 So.2d 65 (Fla.1970); Stringer v. State, 246 So.2d [136] 137 (Fourth District Court of Appeal, 1971); Conyers v. State, 215 So.2d 616 (Third District Court of Appeal, 1968).
(6) Defendant does not allege, nor do the record and files show, any actual prejudice to the Defendant other than his conviction and sentence. Defendant’s motion does not allege, nor do the records and files indicate that a different result could have been reached. Evidence of Defendant’s guilt was overwhelming, including a detailed confession freely and voluntarily given, the voluntariness of said confession having been reviewed and affirmed by the First District Court on direct appeal. Brown v. State, 321 So.2d 637 (First District Court of Appeal, 1975). See copy of Opinion and Mandate attached hereto and made a part hereof. Therefore, upon full consideration and review of Defendant’s motion and the records and files in this cause, the Court finds that said motion, records and files conclusively refute those claims of the Defendant which could constitute grounds for relief, and it is not necessary or proper that an evidentiary hearing be held herein; the Court hereby advises the Defendant that he has the right to appeal this Order within thirty (30) days from the date hereof; and the Court being fully advised in the premises, it is therefore,
ORDERED and ADJUDGED that Defendant’s “Motion For Post Conviction Relief”, dated November 5, 1979, be and the same is hereby denied.
DONE and ORDERED in Chambers at Deland, Volusia County, Florida, this 16th day of July, A.D., 1981.

/s/ Uriel Blount. Jr. Uriel Blount, Jr., Circuit Judge

AFFIRMED.

SHARP and COWART, JJ., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. David Allen MILLER, Appellee.
    No. 78-1553.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.
    C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and William Murphy, Asst. Public Defender, Tampa, for appellee.
   DANAHY, Judge.

This case is before us on remand from the Florida Supreme Court, which in Miller v. State, 403 So.2d 1307 (Fla.1981), reversed our decision in State v. Miller, 369 So.2d 619 (Fla.2d DCA 1979).

Briefly, the relevant facts, as stated in our original opinion, were that officers Hanson and Lainio saw Mr. Miller drive his truck through a red light, and they motioned for him to stop. He then drove into the parking lot of a neighboring business. There, upon inquiry from the officers, he produced false identification and, as a result, they arrested him for obstruction of justice and placed him in their cruiser. They then inventoried the contents of the truck as they prepared to impound it and, in the process, found a controlled substance, phencyclidine, which became the object of a motion to suppress. Subsequently, the trial court suppressed the phencyclidine, ruling that the inventory search was improper because the officers had failed to tell Miller that they were going to impound his truck.

In our previous opinion, we noted that there was little, if any, evidentiary support for the trial court’s findings. However, we thought that to be of little consequence since we ruled that a law enforcement officer did not have a duty to tell a silent arrestee that his car was being impounded. The supreme court reversed this ruling and held that “an officer, when arresting a present owner or possessor of a motor vehicle, must advise him or her that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment.” Miller v. State, at 1314. Because of our concern for the evidentiary support for the trial court’s findings, the supreme court did not affirm the trial court’s order, but remanded the case to us for further consideration.

We have again searched the record, and we conclude that the court erred when it found that the police officers failed to tell Mr. Miller that they were going to impound his truck. Miller himself, when asked about his conversation with the officers, stated that “their comment was, they had to impound it,” and there is nothing further in the record to contradict this statement. Be that as it may, we must still affirm the trial court’s order. Pursuant to the supreme court’s ruling in this case, not only must an officer tell an arrestee that he is impounding the car, but he must also advise the arrestee that the impoundment will not occur if the arrestee can provide a reasonable alternative to impoundment. In the record before us it is clear that neither police office fulfilled this second requirement.

We hasten to add that we do not say that a police officer must provide the arrestee with a list of reasonable alternatives. He must only tell the arrestee that there will be no impoundment if a reasonable alternative is given. We think this conclusion is in accord with the supreme court’s Miller opinion and its later opinion in Sanders v. State, 403 So.2d 973 (Fla.1981), which further discusses this subject. In Sanders the court said: “Although we approve the trial court’s conclusion that there was no necessity for this impoundment, we reject its legal holding which mandates advising an arrestee of all ‘standard alternative choices’ to the impoundment.” At 975.

We therefore withdraw our previous opinion and mandate in this case and affirm the order of the trial court.

SCHEB, C. J., and BOARDMAN, J., concur.


author: BOARDMAN, Judge.

text:
    Maurine Lucille RIPPIE, Appellant, v. STATE of Florida, Appellee.
    No. 80-339.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.

      Edward S. Campbell, III of LaBarbera & Campbell, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason and Debra Osmond, Asst. Attys. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Maurine Lucille Rippie appeals her conviction and sentence for the manslaughter of her husband. We reverse and remand for a new trial.

The deceased met his death in his own mobile home when he was shot by appellant, who was also within the dwelling, occupancy of which they shared. There was evidence that appellant was struck by the deceased in the course of a fight between them just prior to his being shot and killed. Appellant testified in her own behalf and adduced other evidence that she acted in self-defense. Appellant timely requested a jury instruction that a person attacked in his or her own home has no duty to retreat before using force in self-defense. The trial court refused to give the requested instruction.

In refusing to instruct the jury that appellant had no duty to retreat in her own home, the trial court relied on Conner v. State, 361 So.2d 774 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1364 (Fla.1979), in which the defendant shot and killed her son, with whom she shared living quarters. There is a split of authority in the various jurisdictions, however. Many jurisdictions, including Florida, have expanded the “castle doctrine” to permit its use even when the attacker is not an intruder, Hedges v. State, 172 So.2d 824 (Fla.1965), and even when he is a co-occupant, Watkins v. State, 197 So.2d 312 (Fla. 4th DCA 1967). See also State v. Phillips, 38 Del. 24, 187 A. 721 (1936); State v. Leeper, 199 Iowa 432, 200 N.W. 732 (1924); People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914); State v. McPherson, 114 Minn. 498, 131 N.W. 645 (1911); Thomas v. State, 583 S.W.2d 32 (Ark.1979); State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976); People v. Garrett, 82 Mich.App. 178, 266 N.W.2d 458 (1978); State v. Grantham, 224 S.C. 41, 77 S.E.2d 291 (1953); Ison v. State, 252 Ala. 25, 39 So.2d 249 (1949). Judge Cardozo in the Tomlins case stated his reasoning as follows:

It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than 200 years ago it was said by Lord Chief Justice Hale (1 Hale’s Pleas of the Crown, 486): In case a man “is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his .adversary by flight.” Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.

107 N.E. at 497. And in Jones v. State, 76 Ala. 8, 14 (1884), it was aptly inquired: “ ‘Why . . . should one retreat from his own house, when assailed by a partner or coten-ant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’ ”

The Conner court, however, chose to recede from the expanded version of the “castle doctrine” it had espoused in Watkins and held that “where both the antagonist and the assailed are legal occupants of the same ‘castle,’ neither one having the legal right to eject the other, the defense of home instruction need not be given.” Con ner, supra, at 776. A few other jurisdictions are in accord with Conner. See State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909); State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949); State v. Lamb, 134 N.J.Super. 575, 342 A.2d 533, aff’d, 71 N.J. 545, 366 A.2d 981 (1976); Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972).

The First District Court of Appeal has recently taken a position contrary to that decided by the Fourth District in Conner. In State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980), in which the defendant shot and killed her husband in an apparent act of self-defense in the marital home, the court held that there is no duty to retreat from one’s own home regardless of whether co-occupants or intruders are involved. The Third District has followed Bobbitt. Page v. State, 398 So.2d 859 (Fla. 3d DCA 1981). Bobbitt is currently pending before the Florida Supreme Court on petition for cer-tiorari.

We lean toward the expanded view of the castle doctrine followed by Bobbitt and the majority of the other states in this country which have considered this issue. However, we feel that in a situation involving a co-occupant, as here, the castle doctrine should be modified to create, as it were, an exception to the exception to the general rule requiring one assailed to “retreat to the wall.” The standard jury instruction provides:

- One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony. (Emphasis added.)

We think that where the assailant is a co-occupant, there should be a limited duty to retreat. Such a limited duty should not extend to a requirement that the assailed retreat from (i. e. leave the confines of) the dwelling house proper. However, we think that where the assailed person can do so without increasing the danger to himself or any third party present, (s)he should be required to retreat to another area or room in the dwelling, if any, if to do so might tend to reduce the necessity of his/her having to use deadly force in self-defense. Often, when one party to an argument or fight leaves the room, the other party tends to calm down, become more rational, and escalation of the dispute is avoided. This is not an unreasonable burden to place upon a person assailed by a co-occupant, particularly when, we emphasize, the duty would arise only when the limited retreat we envision is available, is practicable, and would not increase the danger to either the person assailed or to any third party present.

In view of the inter-District conflict, which we are admittedly further complicating here, we certify the following question as a question of great public interest.

DOES THE CASTLE DOCTRINE APPLY TO CO-OCCUPANTS AS WELL AS INTRUDERS, AND IF SO, IS IT LIMITED IN ANY WAY IN THE CASE OF AN ALTERCATION BETWEEN CO-OCCUPANTS?

We have considered the other points raised by appellant and find each of them to be without merit.

ACCORDINGLY, the judgment and sentence is REVERSED and the cause REMANDED for a new trial.

HOBSON, Acting C. J., and DANAHY, J., concur.


text:
    GOLF HOST SOUTH, INC., Appellant, v. Carl O. DUNBAR, Jr., Appellee.
    No. 81-47.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.

      Lewis H. Hill, III, and Norman Stallings, Jr., of Hill, Hill & Dickenson, Tampa, for appellant.
    Carl O. Dunbar, Jr., of Dunbar, Dunbar, Roman & Anderson, P. A., Dunedin, for appellee.
   PER CURIAM.

We believe that the court properly limited the general public’s use of the golf course facilities at Innisbrook. Appellant’s contention that the court had no standing to interfere with the internal affairs of a voluntary association is without merit because contractual rights were involved, and the golf club is controlled by appellant, which is a for-profit corporation. However, our study of the applicable documents leads us to conclude that the court’s order was slightly over restrictive. We, therefore, modify the injunction to the extent that the use of Innisbrook golf course facilities shall be limited to members of Innisbrook Resort and Golf Club, their invitees, while playing with the member or while occupying the member’s condominium unit, rental guests at Innisbrook, and guests of rental guests, when accompanied by their hosts.

AFFIRMED, AS MODIFIED.

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


author: GRIMES, Judge.

text:
    Seth Hamilton GIDDENS, Appellant, v. STATE of Florida, Appellee.
    No. 81-649.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant challenges his conviction for statutory rape, incest and three counts of sexual battery. Among other things, he contends that the court erred in admitting certain testimony in violation of the “Williams Rule.”

The state proffered a statement which appellant made after an officer read him the Miranda warnings in the booking room at the police station. According to the officer, appellant said, “Last time you arrested me for this I fell for it and I told you the truth that I did it. Look where it got me then. I’m not falling for it this time.” Defense counsel objected to the statement on the ground that it would improperly place appellant’s character in issue. The court permitted the introduction of the statement with the elimination of the words “for this,” thereby deleting any reference to appellant having been previously arrested for the same offense.

Appellant ultimately took the stand and denied all of the charges against him. By interpreting the statement to mean that appellant was saying that he intended to lie about the charges this time, the state contends that it was admissible as impeachment. If that was what appellant meant, the court largely negated the statement’s value for impeachment purposes by deleting the words “for this,” thereby eliminating the relationship between the previous charges and those for which he was on trial. In any event, the statement was not proper as impeachment because it was introduced during the state’s case-in-chief before appellant testified. The state’s argument that this is irrelevant because the statement could have been introduced in rebuttal is unpersuasive. There is no way to know whether appellant would have testified if the statement had not been previously introduced.

Another reason exists for rejecting the state’s argument. A more likely interpretation of appellant’s statement is that when he was last arrested he had admitted his guilt to his detriment so he was not going to say anything this time. The statement is thus essentially the equivalent of a refusal to talk, and so it has no value for impeachment purposes.

We are also unable to see how the edited statement was relevant to any of the other essential issues. Therefore, it tended only to place appellant’s character (criminal propensity) in issue by demonstrating that he had been previously arrested. This is precisely what Williams v. State, 110 So.2d 654 (Fla.1959), as codified in section 90.404, Florida Statutes (1979), tries to avoid. See, also, Curry v. State, 355 So.2d 462 (Fla.2d DCA 1978).

We find no merit in the other points which appellant raises. We reverse the judgment and remand the case for a new trial.

SCHEB, C. J., and HOBSON, J., concur.

      . Counsel also argued that the statement was an improper comment on appellant’s right to remain silent, but he did not make a motion for mistrial. Therefore, to the extent that the recitation of the statement may have violated appellant’s fifth amendment rights, the error was waived. Clark v. State, 363 So.2d 331 (Fla.1978).

      . We are unwilling to extend the principle of Duncan v. State, 291 So.2d 241 (Fla.2d DCA 1974), beyond the particular facts of that case.


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

text:
    STATE ex rel. Franklin C. COODY, Petitioner, v. The Honorable Bernard C. MUSZYNSKI, As Judge of the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, Respondent.
    No. 81-1044.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 1981.

      Richard Trapp of Trapp & Chastain, Orlando, for petitioner.
    Honorable B. C. Muszynski, Orlando, pro se.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioner seeks a writ of prohibition to prevent enforcement of an order committing him to jail for criminal contempt.

In State ex. rel. Coody v. Muszynski, 402 So.2d 81 (Fla. 5th DCA 1981), this court granted certiorari quashing a part of the trial court’s order dated August 13, 1981. The order found the petitioner in contempt for failure to pay the ordered child support, sentenced him to confinement for sixty days and provided that he could purge himself of contempt by paying the amount of adjudicated arrearages “seven days after incarceration.” This court quashed the portion of the order which in effect sentenced petitioner to jail for seven days before he could purge himself.

When the trial judge was advised verbally of this court’s grant of the writ, he concluded that the order quashed was deficient and should be amended to reflect the fact that the husband, Franklin C. Coody, was also found guilty of criminal contempt and the reasons why. Therefore, on August 19, 1981, an “Amended Order of Commitment for Contempt” was entered “nunc pro tunc.” The changes in the order consist of the additional finding: “the Husband failed to personally appear and failed to return the minor child when obligated to do so.” The trial judge amended paragraph 1 of the original order which read, “The Husband, Franklin C. Coody, is adjudged to be in contempt of this court,” by adding the words “Civil and Criminal”; otherwise, the orders are essentially identical.

The petition for rule to show cause filed below states three bases for a finding of contempt. In essence, the first alleged that the husband had obtained the minor child of the parties pursuant to an agreement to return her on August 1, 1981, but that he had failed to return her or permit the mother to talk to her. The second ground set out in the petition was that the husband had failed to pay one-half of certain medical bills and the third ground, that he had failed to pay the attorney fees ordered in the final judgment. The court found him in contempt for failing to return the child, pay the sums ordered, and for failure to appear for the hearing on the rule to show cause.

The trial court has filed a response arguing that this court’s action in quashing its order was premature and precipitous because we did not require a more complete record. Our decision was proper, however, because the action of the trial court was not justified under the facts and it was obvious from the court’s order that the requirements of Florida Rule of Criminal Procedure 3.840 had not been met and that the petitioner’s arrest was imminent.

Nothing in the petition indicated that criminal contempt was contemplated. In the case of criminal contempt, greater procedural due process safeguards are involved. This principle is recognized in Florida Rules of Criminal Procedure 3.830 and 3.840. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

Rule 3.830 provides for punishment of direct criminal contempt. Direct criminal contempt occurs where the act constituting the contempt is committed in the immediate presence of the court. Pugliese. Where the act is committed out of the presence of the court, the procedures outlined in rule 3.840 for indirect criminal contempt are applicable. Id.

None of the omissions of petitioner listed above constituted a direct criminal contempt. Even if there had been a direct criminal contempt, petitioner was not afforded the procedural guaranties of rule 3.830. See State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981); Porter v. Williams, 392 So.2d 59 (Fla. 5th DCA 1981). In the case before us, the trial judge had two alternatives available to him in the disposition of the petition: 1) he could issue an order to arrest the defendant and to commit him for a designated period or until he purged himself of civil contempt, or 2) if he concluded the petition indicated facts constituting an indirect criminal contempt, he could follow the procedures established in rule 3.840 for indirect criminal contempt. Under the facts of this case, petitioner could not be prosecuted for criminal contempt until an order signed by the judge and directed to the defendant was issued, stating the essential facts constituting the criminal contempt and requiring the defendant to appear and show cause. If the judge believes petitioner will not appear, he may order his arrest but he shall be admitted to bail as in criminal cases. He must be arraigned at the hearing or, at his request, prior thereto. He is entitled to be represented by counsel, have compulsory process for attendance of witnesses and may testify in his own behalf. None of these procedural safeguards were afforded the petitioner/husband here. The amendment to the August 13,1981 order did nothing whatever to cure these omissions.

We therefore GRANT WRIT OF PROHIBITION. The amended order dated August 19, 1981 is QUASHED and of no further force or effect.

ORFINGER and COBB, JJ., concur.

      . Because the result would be the same, we have elected not to deal with the impropriety of the trial judge’s action in attempting to amend an order nunc pro tunc after being informed that this court had accepted certiorari jurisdiction and quashed a portion of the original order.

      . While failure to appear pursuant to an order of the court may be considered a direct criminal contempt, Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980), here petitioner’s failure to appear at the hearing on the rule to show cause merely constituted a failure to appear at a civil proceeding and acted as a default as to those matters considered at the hearing.


author: WENTWORTH, Judge. OWEN, WILLIAM C., Jr. (Retired), Associate Judge,

text:
    Carl E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. WW-131.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.

      Michael E. Allen, Public Defender, Margaret Good and Melanie H. Alford, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a conviction and sentence for the offense of attempted burglary (after trial on a charge of burglary), alleging that the trial court erred by unduly limiting cross-examination of a state witness, and by refusing to instruct the jury on the minimum and maximum penalties for the offense charged. Appellant also questions inconsistencies between the oral sentencing pronouncement, the written sentence, and the order of commitment. We conclude that appellant demonstrated error requiring reversal and remand for a new trial.

Appellant was discovered within the residence of the state’s key witness, who testified that he confronted appellant and ordered him from the house, and that in departing appellant dropped an item belonging to another resident of the house. Appellant denied taking any item which was in the house and testified that he entered the residence while merely attempting to ascertain the location of a garage sale which he believed was being held in the neighborhood.

At trial appellant’s counsel attempted to cross-examine the state’s key witness (a white male) as to whether he had any bias or prejudice against black persons generally, or against appellant (a black male) individually. The trial court overruled the state’s objection to questions regarding individual bias against appellant, but appellant’s counsel thereupon voluntarily withdrew the question and made no further attempt to establish a personal bias. However, the court sustained the state’s objection as to any questions regarding generalized bias or racial prejudice, and further prohibited that line of questioning when appellant’s counsel thereafter attempted to pursue the issue. Appellant alleges that his defense was hampered by such restriction of cross-examination, in contravention of his constitutional right to confront an adverse witness. The state cites Hernandez v. State, 360 So.2d 39 (Fla. 3d DCA 1978) for the proposition that the trial judge has discretion to restrict cross-examination and that appellant has not demonstrated any abuse of discretion since the prohibited questions were not probative of any bias against appellant individually.

The Florida Evidence Code expressly provides that a witness’s credibility may be attacked by a showing of bias, § 90.-608(lXb), Florida Statutes, although both the Code and case law permit judicial discretion in controlling the mode, order, and scope of cross-examination. § 90.612; Hernandez, supra. But such judicial discretion is constrained by a defendant’s right to confront adverse witnesses. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980). While § 90.403, Florida Statutes, provides that relevant evidence may be inadmissible when it creates a danger of unfair prejudice, confusion of the issues, misleading the jury, or results in a needless presentation of cumulative evidence, the statute expressly provides that such evidence is inadmissible only when its probative value is “substantially outweighed” by the countervailing statutory considerations.

Applying the foregoing principles to the present case, we find no basis for the trial court’s limitation of cross-examination as to whether the state witness possessed a generalized prejudice against black persons. While the court’s determination to limit cross-examination should not be disturbed absent an abuse of discretion, see Hernandez, supra, we conclude that the present case involves such an abuse of discretion. In balancing considerations of unfair prejudice with the probative value of questions regarding a witness’s racial bias, such questions have elsewhere been found proper and not unfairly prejudicial. See e. g., Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144 (1949); see generally, Chipman v. Mercer, 628 F.2d 528 (9th Cir.1980); United States v. Kartman, 417 F.2d 893 (9th Cir.1969). The record in the present case contains no evidence indicating any unfair prejudice in this instance, nor any indication that the attempted questioning on racial bias would confuse the issues, mislead the jury, or result in a needless presentation of cumulative evidence. In reversing on this issue we note that appellant’s counsel expressly advised the trial court of his reason for this line of questioning.

With respect to appellant’s argument that the trial court erred by refusing to instruct the jury as to the minimum and maximum penalties, as required by Rule 3.390(a), Fla.R.Crim.P., this issue was adequately preserved for appeal by objection to the court’s refusal to give the requested instructions, and Tascano v. State, 393 So.2d 540 (Fla.1980), reh. denied (1981), establishes that such refusal is reversible error. When the error is properly preserved the court has refused to find it harmless, and the prospective language of the ruling apparently excludes from its benefit only appeals concluded before its effective date. Murray v. State, 403 So.2d 417 (Fla.1981); Knight v. State, et al., 401 So.2d 1333 (Fla.1981); Williams v. State, 399 So.2d 999 (Fla. 3d DCA 1981).

The present case also involves a sentencing inconsistency between the trial judge’s oral pronouncement, the written sentencing order, and the order of commitment. While such inconsistencies usually require remand for clarification/correction, see Badger v. State, 398 So.2d 984 (Fla. 1st DCA 1981), this issue is mooted in the present case by our reversal and remand for a new trial on other grounds.

Because we conclude that the trial court erred in limiting cross-examination and refusing to instruct the jury as to the minimum and maximum penalties applicable, we reverse the judgment and sentence appealed and remand the case for a new trial.

SHAW, J., concurs.

OWEN, WILLIAM C., Jr. (Retired), Associate Judge, dissents with opinion.

OWEN, WILLIAM C., Jr. (Retired), Associate Judge,

dissenting:

Neither of the reasons cited in the majority opinion justify reversal, much less require it.

First, the matter of the trial court’s limitation on cross examination of the State’s witness: Given the correctness of the legal principles and concepts set forth in the majority opinion, they were not violated here. The question propounded on cross examination of the State’s witness, to which the court sustained objection, was: “Do you have occasion to socialize or have any dealings with Blacks?” This question was not productive of any answer which would have shown any bias or prejudice on the part of the witness against the defendant. The court neither erred nor abused its discretion, but were it otherwise, such would be harmless at most in view of the other evidence which fully corroborated the witness’s testimony. In all events, I surely would not think that this one evidentiary ruling on a question, the answer to which, if allowed, would have been unproductive of any probative value, can be said to be such an abuse of discretion as to justify reversing the judgment and granting a new trial.

Second, the matter of the trial court’s error in refusing to instruct the jury as to the minimum and maximum penalties, as required by Rule 3.390(a), Fla. R. Crim. P.: The error was harmless in view of (1) the overwhelming evidence of defendant’s guilt, and (2) the fact that the jury convicted defendant of the lesser included offense of attempted burglary. While Tascano v. State, 393 So.2d 540 (Fla.1980) does indeed, as cited in the majority opinion, hold that the failure to instruct as to the minimum and' maximum penalties is reversible error, the Tascano Court expressly stated that its holding was to be applied prospectively only, applicable to all cases (1) in which a jury trial is commenced on or after the effective date of the Tascano opinion, and (2) the point is properly preserved for appeal. While the defendant in this case properly preserved the point for appeal, his trial commenced May 28, 1980. Since appellant is not entitled to the benefit of the Tascano holding, and since the error is otherwise harmless, I would not reverse the judgment on this ground either.

Although I would affirm the judgment, I would remand to the trial court for clarification and correction of the sentencing inconsistency noted in the majority opinion.

      . “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. Amend. § VI.
      “In all criminal prosecutions the accused . .. shall have the right ... to confront at trial adverse witnesses. ...” Fla. Const., Art. I, § 16.

      . This approach is in agreement with the Federal Rules of Evidence and federal case law. See Federal Rule 403 and United States v. Diecidue, 603 F.2d 535 (5th Cir.1979).

      . June 5, 1980.


author: THOMPSON, Judge.

text:
    U. S. HOME CORPORATION and Northwestern National Insurance Company, Appellants, v. Donald E. PARKER and Brent Schoch, Appellees.
    No. WW-456.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.

      Robert Marvin Todd of Lyle & Skipper, St. Petersburg, for appellants.
    Joseph V. Barrs, Tampa, for appellee Donald E. Parker.
    Ronald E. Perez, Tampa, for appellee Brent Schoch.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) had no authority to adjudicate the controversy between themselves and the appellee Brent Schoch. We agree and reverse.

U. S. Home Corporation (“U. S. Home”) was the contractor for a building project, and it hired Mr. Schoch to perform work as a sub-contractor. The contract between U. S. Home and Mr. Schoch required Mr. Schoch to procure workers’ compensation insurance. The contract also provided that Mr. Schoch would indemnify U. S. Home against all claims, including injuries to persons, arising out of work performed by Mr. Schoch.

Mr. Schoch hired the appellee Donald Parker (“the claimant”) to perform work for the sub-contract. However, Mr. Schoch did not procure workers’ compensation insurance, nor was he a qualified self-insured. The claimant suffered an on-the-job injury, and Mr. Schoch paid him $10,500. The claimant later brought a workers’ compensation claim against Mr. Schoch who, in turn, filed with the Deputy a Petition for Contribution or Reimbursement from U. S. Home.

After a hearing, the Deputy found that pursuant to § 440.10(1), Fla.Stat. (1977), U. S. Home was responsible for the payment of compensation benefits. The Deputy proceeded to adjudicate the merits of the claim, and then he ruled that U. S. Home was entitled to take, as a credit against the compensation due, the $10,500 paid to the claimant by Mr. Schoch. As for the issues raised by Mr. Schoch’s Petition for Contribution or Reimbursement, the Deputy declined to rule on these issues, noting that “there has not yet been a determination by a court of competent jurisdiction as to the validity of the [contract between U. S. Home and Mr. Schoch.]” No appeal was taken from this Order.

Approximately five months after the Deputy entered his Order, Mr. Schoch filed an Amended Petition for Contribution or Reimbursement. At a hearing on this Petition, the Deputy determined that U. S. Home’s insurance carrier, the appellant Northwestern National (“Northwestern”), was required to reimburse Mr. Schoch the sum of $10,500. The Deputy found that Northwestern was not entitled to rely on the indemnity provision of the contract between U. S. Home and Mr. Schoch, because it was not a party to that agreement.

Initially, we note that in the Deputy’s first Order, he specifically withheld ruling on the Petition for Contribution or Reimbursement until a court of competent jurisdiction ruled upon the validity of the contract. The Deputy then entered a second, contradictory Order, whereby he decided to determine the validity of the contract. This procedure was unorthodox, and in this case, erroneous.

There was no statutory authority for the Deputy to adjudicate the controversy between Northwestern and Mr. Schoch. We recognize that § 440.42(3), Fla.Stat. (1977), permits the Deputy to determine the responsibility of two or more carriers for the payment of workers’ compensation benefits, in addition to ordering appropriate reimbursements by one carrier to another. However, the application of that statute would clearly require that Mr. Schoch be a “carrier,” which is an entity or person who is authorized to insure an employer, or alternatively, a qualified self-insured. See § 440.02(7), Fla.Stat. (1977). No evidence was presented showing that Mr. Schoch is a carrier. Therefore, § 440.42(3), Fla.Stat. (1977) is inapplicable, and accordingly, the Deputy had no power to construe the contract in question. See, e. g., Total Appliance Repairs v. Nelson, 382 So.2d 1333, 1334 (Fla. 1st DCA 1980).

The Deputy had no authority to enter his second Order, and that Order is reversed.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.


text:
    CAR STOP UNLIMITED and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Joe Heray SALMON, Appellee.
    No. YY-319.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    John K. Vreeland of Lane, Trohn, Bertrand, Williams & Smith, Lakeland, for appellants.
    Clifton L. Howell, Jr., Winter Haven, for appellee.
   PER CURIAM.

This cause is before us on appeal from a workers’ compensation order awarding, among other things, total wage loss benefits to claimant for the period January 15, 1978, to February 14, 1980. Although we find no error in the points raised on appeal, we note disposition of a novel issue as to whether reversible error occurred in the award of wage loss benefits for the period in question, when such benefits were not included in a pending claim for other benefits filed November 19,1979, but were identified in an application for hearing filed February 15, 1980.

The application for hearing contained the names and addresses of the employer, employee and carrier, the claimant’s social security number, the date of accident, and a request “in accordance with Florida Statutes 440.15(3)(b)” for wage loss benefits in a stated amount for the monthly period in question. That application was filed within three days after the claimed monthly wage loss period. (Appellant's argument does not relate to the discrepancy between the order’s terminal date of February 14 and the February 12 date noted in the application.) Final hearing was held on July 17, 1980, following pretrial on April 24, 1980.

In A. B. Taff & Sons v. Clark, 110 So.2d 428 (Fla. 1st DCA 1959), this court restated the well recognized rule with respect to informality of pleadings in workers’ compensation cases:

. . . The workman’s compensation law is so administered that formal pleadings .. . are quite unnecessary in order to activate the question of an employee’s right to compensation and other benefits under the act, and . . . any paper lodged with the Commission indicating a probability that the employee has not received such compensation or benefits is treated as a “claim” and processed as such in the same manner as if it were filed with all the niceties of expert legal attention. A. B. Taff & Sons, 110 So.2d at 433.

Although extensive substantive and procedural revision of the law has occurred since that decision, our consideration of the sequence of events above recited in the light of the current statutes does not show that the procedures here in question prevented any fair opportunity for action by appellant and the Division toward which the provisions of the law and rules are directed. § 440.185(10) and § 440.19(1) and (2)(d); Rule 38F-3.10 and 3.18, State of Florida Rules and Regulations.

In accord with the rationale enunciated in Taff, we conclude that failure by claimant to utilize the specific form prescribed by the Division should not be fatal so long as essential statutory requirements respecting claimed wage loss benefits are otherwise satisfied. We therefore find that the application for hearing filed in this case was under the circumstances properly treated as a claim for the benefits in question. Our conclusion here, that a claim by any other name or form may serve the same essential purposes, does not of course address the significance of deficiencies in an alleged claim which may be prejudicial for reasons other than those asserted in this case. See Jones v. K & L Contractors, 392 So.2d 375 (Fla. 1st DCA 1981).

The deputy’s order is affirmed.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    James ALEXANDER, a/k/a Ronald Johnson, a/k/a Jessie McMillian, Appellant, v. STATE of Florida, Appellee.
    No. YY-443.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

The provision in appellant’s sentence that he be confined “at hard labor” is not authorized by law, is surplusage, and as such is hereby stricken. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977). As amended, the sentence is affirmed.

The appeal from the conviction for grand theft is dismissed without prejudice to appellant to file a motion for post-conviction relief under Fla.R.Crim.P. 3.850. See Wilson v. State, 378 So.2d 1258, 1260 (Fla.1st DCA 1979), rev’d on other grounds, 395 So.2d 520 (Fla.1981); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979); Hall v. State, 397 So.2d 1041 (Fla. 5th DCA 1981).

SHAW and THOMPSON, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    PALM BEACH NEWSPAPERS, INC., and Fred S. James & Company of Florida, Appellants, v. Sophia B. ROSTON, Appellee.
    No. AB-180.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    Marjorie D. Gadarian, of Jones & Foster, P.A., West Palm Beach, for appellants.
    Stanley J. Narkier, of Weathers, Narkier & Brooks, P.A., West Palm Beach, for ap-pellee.
   THOMPSON, Judge.

On this appeal, the employer/carrier contends that the Deputy Commissioner erred by awarding temporary total disability benefits to the claimant and by finding that the employer/carrier is responsible for the costs of treatment by an unauthorized physician. We agree and reverse.

There must be competent substantial evidence showing that the claimant is unable to work before she is entitled to temporary total disability benefits. When there is a lack of medical evidence in this respect, then the claimant must make a conscientious effort tp return to work before she can establish that she is unable to work and is entitled to temporary total disability benefits. Commercial Carrier Corp. v. Bennett, 396 So.2d 847, 848 (Fla.1st DCA 1981); Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275, 276 (Fla.1st DCA 1981); Walter Glades Condominium v. Morris, 393 So.2d 664, 665 (Fla.1st DCA 1981).

In this case, the claimant was treated by four medical doctors and none of these was of the opinion that she was unable to work. Dr. Holder, a chiropractor, did advise her against returning to work to the extent that pain would result, but the Deputy Commissioner specifically rejected Dr. Holder’s findings in this regard.

There was no medical evidence of the claimant’s inability to return to work. Additionally, the record does not reflect that the claimant made a conscientious effort to return to her employment. Also, once that employment was terminated, the claimant was required to seek work to establish temporary total disability. She had the burden of showing that her work search was successful, but that she was unable to perform the work. Alternatively, she would have to show that a bona fide work search was unsuccessful due to her disability. See Lehigh Corp. v. Byrd, 397 So.2d 1202, 1204 (Fla. 1st DCA 1981). The claimant has failed to establish any of the preceding elements. Moreover, her testimony to the effect that she did not feel capable of working cannot serve as the basis for an award of temporary total disability benefits. Morris, 393 So.2d at 665.

The Deputy Commissioner also found that Dr. Holder’s treatment was reasonable and necessary and that the employer/earrier was responsible for the payment of Dr. Holder’s bills, along with a transportation reimbursement for the claimant. Dr. Holder’s treatment was not authorized and an unexplained finding by the Deputy Commissioner that the unauthorized treatment was reasonable and necessary does not excuse the failure to obtain authorization. Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117, 1120 (Fla.1st DCA 1981).

The Deputy Commissioner’s Order is reversed insofar as it awards temporary total disability benefits and directs the employer/carrier to pay Dr. Holder’s bills and reimburse the claimant for transportation expenses incurred in conjunction with his treatment. This cause is remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and JOA-NOS, J., concur.


text:
    RANDELL, INC. and Reliance Insurance Company, Appellants, v. William CHISM, Appellee.
    No. AB-211.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.

      Thomas A. Moore of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, P. A. and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   THOMPSON, Judge.

On this appeal from a workers’ compensation Order, the appellants contend that the Deputy Commissioner (“the Deputy”) erred in his computation of the claimant’s average weekly wage (“AWW”) and in awarding attorney’s fees to the claimant’s counsel. We agree and reverse.

The claimant, a brick mason, sustained a compensable back injury on January 13, 1980, while he was employed by the appellant Randell, Inc. Compensation was paid by the carrier, and a hearing on the question of the proper rate of compensation was held in July 1980. At that hearing, the claimant requested compensation of $211.00 a week based on an AWW of $340.00. He testified that he had worked exclusively for Randell, Inc. since October 1979, and that he earned $8.50 an hour during a 40 hour work week; i.e., $340.00 a week.

In September 1980, another hearing was held. The president and the secretary-treasurer of Randell, Inc. testified that the claimant was only a part-time employee who earned a total of $591.00 during the 13 weeks preceding his accident, which would indicate an AWW of $45.46 and a compensation rate of $30.32. After this evidence was introduced and independently documented, the claimant remembered that while he worked for Randell, Inc., he also worked for Conway Construction Company as a brick mason where he had an AWW of $400.00 during the 13 week period prior to his accident. This testimony was directly contradicted- by the president of the construction company, who also presented a document showing that the claimant earned $1,203.00 during the time in question, in addition to a $200.00 Christmas bonus. Additionally, the president testified that the claimant was not employed by Conway Construction Company, but was hired as a subcontractor.

At the September 1980 hearing, the claimant also remembered that he did additional masonary work for a private individual in December 1979, for which.he charged $1,500.00. This individual turned out to be a Ms. Painter, the claimant’s girlfriend. She testified that she did not pay him in cash, but instead, allowed him to charge 3 microwave ovens to her credit account. The documents recording these credit transactions show that buyer was not the claimant, but Ms. Painter, who later testified that the claimant gave one microwave oven to her and another one to her daughter.

In February 1981, the Deputy entered his Order, finding that the claimant, working as a brick mason, earned $3,494.00 during the 13 week period before his accident, based on earnings of: $591.00 from Randell, Inc.; $1,403.00 from Conway Construction Company; and $1,500.00 from Ms. Painter. Thus, the deputy determined that the AWW was $268.77.

Section 440.14(l)(a), Fla. Stat. (1979) provides in part that:

If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks, [e.s.]

The Deputy used this statute to combine the claimant’s total wages as a brick mason during the 13 week period preceding his accident. However, as this court stated in Rollins Bldg. Services, Inc. v. Thomas, 393 So.2d 665, 666 (Fla. 1st DCA 1981), “wages earned by a claimant in employment excluded from coverage under the [Workers’ Compensation Act (‘the Act’)] are not in-cludable in determining [the] claimant’s compensation base.” See also Jaquette Motor Co. v. Talley, 134 So.2d 238, 239-40 (Fla.1961). In this case, the claimant’s “employment” by Conway Construction Company and Ms. Painter was not covered by the Act, and the wages earned from the employment should not have been used to compute the claimant’s AWW.

The claimant’s “employment” by the construction company was excluded from the Act’s coverage by virtue of § 440.02(2)(d)l, Fla. Stat., which provides that the term “employee” does not include an independent contractor. The claimant herein was not employed by the construction company, but was an independent contractor, as indicated by the following factors: the payment of wages by job, instead of by time; the performance of masonary work at a fixed price for any given job; and the claimant’s hiring of and payment to assistants. Moreover, independent contractor status is indicated by the fact that the claimant was subject to the direction of the construction company only as to the result of his work — not the means used to achieve that result. See Baya’s Bar & Grill v. Alcorn, 40 So.2d 468, 469 (Fla.1949). See also Collins v. Federated Mut., 247 So.2d 461, 463-64 (Fla. 4th DCA 1971), cert. den. 249 So.2d 689 (Fla.1971). Accordingly, since the claimant was not an employee of the construction company, his “employment” was not covered by the Act, see § 440.02(1)(a), Fla. Stat., and his earnings as an independent contractor should not have been used in determining his AWW. Jay Livestock Market v. Hill, 247 So.2d 291, 292 (Fla.1971).

The claimant’s “employment” by Ms. Painter was excluded from the Act’s coverage by virtue of § 440.02(l)(b)2, Fla. Stat., which states that “[t]he term ‘employment’ shall include: [a]ll private employments in which three or more employees are employed by the same employer.” This language, which implicitly limits the definition of “employment” in § 440.02(l)(a), Fla. Stat., was interpreted in Mathers v. Sellers, 113 So.2d 443, 445 (Fla. 1st DCA 1959), as follows:

In order, therefore, to bring employment within the purview of [the] Act, it was necessary to show the existence of an established mode or plan of hiring three or more persons pursuant to some constant or periodic custom resulting in a numerical pattern of employment that becomes the rule and not the exception.

See also Allen v. Estate of Carman, 281 So.2d 317, 320 (Fla.1973); Sudler v. Sun Oil Co., 227 So.2d 482, 483-84 (Fla.1969). Ms. Painter did not employ three or more persons as that requirement was explained in Mathers. Therefore, in light of the preceding cases, the claimant’s work for her did not constitute employment within the purview of the Act, and his earnings should not have been included in determining his AWW.

The Deputy also found that the claimant’s counsel was entitled to a reasonable attorney’s fee, together with a reimbursement for taxable costs. The appellants assume that they are to be responsible for these expenses, although the Deputy’s Order is not clear on this point. It the Deputy intended for the appellants to bear these expenses, the Deputy was in error. The accident herein occurred in January 1980, and we find that as a matter of law, there is no applicable statutory provision which would allow for the assessment of an attorney’s fees or costs to be borne by the appellants. See § 440.34(2)(a)-(c), Fla. Stat.

The Deputy’s Order is reversed and this cause is remanded with directions to enter an Order finding that for the 13 week period preceding the claimant’s accident, his AWW was $45.46.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J. concur..


text:
    Alonzo Winfred BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-987.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Bennett H. Brummer, Public Defender and Lawrence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Oyarzo, 274 So.2d 519 (Fla.1973).


text:
    Neal Emery REID, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1031.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment of conviction for robbery which is under review by this appeal is affirmed as it has in no way been attacked by the appellant before this court. The twelve (12) year prison sentence imposed upon such judgment of conviction is, however, reversed as the appellant was, without dispute, qualified to be sentenced as a youthful offender under Section 958.04(2), Florida Statutes (1979), but was not so sentenced. Section 958.04(2), Florida Statutes (1979), is mandatory in nature and, therefore, requires that the appellant be sentenced in this case as a youthful offender. State v. Goodson, 404 So.2d 1337 (Fla.1981) (case no. 59,864, opinion filed September 10, 1981), affirming, Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980); Evans v. State, 398 So.2d 1018 (Fla. 5th DCA 1981); Warren v. State, 391 So.2d 775 (Fla. 4th DCA 1980); see also Killian v. State, 387 So.2d 385, 386 (Fla. 2d DCA 1980). The cause is, accordingly, remanded to the trial court with directions to resentence the appellant as a youthful offender under Section 958.05, Florida Statutes (1979).

Affirmed in part; reversed in part and remanded.


text:
    Dave FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1738.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   SCHWARTZ, Judge.

The defendant was convicted and sentenced both for burglary of a conveyance and possession of a burglary tool, a common screwdriver, which was used in the break-in. We think that the propriety of the dual adjudications and sentences, the sole issue on appeal, has been established by the recent decision in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). By receding from State v. Pinder, 375 So.2d 836 (Fla.1979), Hegstrom simultaneously demonstrated the correctness of the rationale and result in Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), which is identical to this case and, as is shown by the first district’s certification of the Pinder issue, which it considered controlling, the /«correctness of that court’s directly contrary conclusion in Cantrell v. State, 405 So.2d 986 (Fla. 1st DCA 1981).

Since we agree with both Cantrell and Borges that possession of burglary tools— even when they are common household items — is not a lesser included offense of burglary, contra, Humphreys v. State, 388 So.2d 607, n.1 (Fla. 2d DCA 1980), Section 775.021(4), Florida Statutes (1979), which, under Hegstrom, entirely controls the present issue, requires that the judgments and sentences under review be

Affirmed.