author: ORFINGER, Chief Judge.

text:
    John W. MIDDELVEEN and Patricia Kathleen Middelveen, Appellants, v. SIBSON REALTY, INC., Appellee.
    No. 81-599.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Rehearing Denied July 29, 1982.

      Henry J. Martocci, Cocoa, for appellants.
    James L. Simon of Bogin, Munns, Munns & Simon, Orlando, for appellee.
   ORFINGER, Chief Judge.

Appellee, plaintiff below, recovered a judgment against appellants for a real estate commission, following a jury trial. Defendants appeal and we affirm.

At the close of plaintiff’s case, the court granted defendants’ motion for a directed verdict as to Count 3 of the four-count amended complaint, denied the motion as to one count, and reserved ruling on the remaining two counts. The court announced that it reserved further consideration of this motion until the jury had been instructed and had retired. After the jury retired, the court heard further argument, granted the motion as to Count 4, and denied it as to Counts 1 and 2.

Appellants first contend that it was error to instruct the jury on Count 4 and then grant defendants’ motion for a directed verdict as to that count, because it is now impossible to determine if the jury considered that count in reaching a verdict. The jury was given only a general verdict form, so it is not possible to determine on which of the counts the verdict for plaintiff was rendered. Appellants did not request special verdicts, nor did they object to the use of a general verdict. Where a general verdict form is submitted to the jury without objection, reversal is improper where no error is found as to one of several issues submitted to the jury on which the verdict may be properly based. Whitman v. Castle-wood Intern. Corp., 383 So.2d 618 (Fla.1980); Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977); Rosenfelt v. Hall, 387 So.2d 544 (Fla. 5th DCA 1980). No reversible error is shown as to this issue.

Appellants’ next contend that the trial court erred in giving certain jury instructions requested by appellee. With regard to the now complained of instructions, the record reflects either no objection at all, or only a general “I wish to object to the plaintiffs’ instruction number 3” type of objection. In a civil action, to properly preserve error for appellate review on the giving of an instruction requested by the opposing party, it is necessary that a distinct and specific objection be made. A general objection is not sufficient. Coleman v. Allen, 320 So.2d 864 (Fla. 1st DCA 1975); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA 1970). The objection may not be made for the first time on appeal. Lollie v. General Motors Corp., 407 So.2d 613 (Fla. 1st DCA 1981). Thus, in the face of no objection or only a general objection to instructions requested by the opposing party, the trial court has not been given the opportunity to rule on a specific point of law, and there is no issue created or preserved for appellate review.

With respect to the instructions requested in writing by appellant and rejected by the court, there is no requirement for additional objection to preserve that issue for appeal. In a civil proceeding, if a party submits a written request for a jury instruction, and it is rejected by the trial court, the issue is preserved for appellate review without more. Hattaway v. Florida Power & Light Co., 133 So.2d 101 (Fla. 2d DCA 1961). Thus, although properly preserved for appellate review, we find the instructions requested by appellant and rejected by the trial court to be misleading and confusing, or else not supported by the evidence, and thus properly rejected.

We have considered appellants’ remaining issues and find them to be without merit. The final judgment appealed from is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Florida Rule of Civil Procedure 1.470(b) provides:
      Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall inform counsel of such general charges as it will give. No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same. The court shall charge the jury after the arguments are completed, (emphasis added).

      . The rule is otherwise in a criminal proceeding, where a specific and distinct objection is required to the giving or the failure to give an instruction, in order to preserve an issue for appellate review. Fla.R.Cr.P. 3.390(d). See, e.g., Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980).


source: Caselaw Access Project

author: PER CURIAM. SHARP, J.,

license: Public Domain

text:
    Jack REYNOLDS, Appellant, v. SCHOOL BOARD OF FLAGLER COUNTY, Florida, Appellee.
    No. 81-1025.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    John D. Carlson, of Woods, Johnston & Carlson, Tallahassee, for appellant.
    John W. Bowen, of Bowen & King, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and COWART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, J.,

dissenting.

I dissent in this ease because Reynolds’ (principal of Bunnell Elementary School) disobedience or disregard of his superintendent’s instructions as established by this record (at the worst) does not, in my judgment, amount to “gross insubordination and willful neglect of duty.” Since Dr. Reynolds had a three year contract with the School Board, he could not be dismissed unless the specified statutory grounds were established by a preponderance of the evidence.

Dr. Reynolds was charged with willful neglect or gross insubordination because:

(1) He failed to attend School Board meetings after being instructed to do so.
(2) He failed to provide the superintendent with a plan for reallocation of instructional aides.
(3) He failed to respond to the superintendent’s request for retention and enrollment projections for the 1981-82 school year.
(4) He failed to develop and submit a plan for the Title I federal program.
(5) He failed to attend a conference with the superintendent on April 27, 1981.

The proofs showed that only Count Four had much substance.

(1) As regards Count One, Dr. Reynolds missed only two School Board meetings. One was because he had visitors from Fla-gler College visiting his school, and he notified the superintendent of the conflict. The second meeting he missed because he simply forgot about it. The superintendent admitted that missing these two meetings was not gross insubordination or willful neglect of duty.

(2) As to Count Two, Dr. Reynolds responded to the superintendent’s memorandum by reallocating aides, and verbally gave him notice.

(3) As to Count Three, the superintendent admitted his request regarding enrollment figures was not clear. The request was replied to by Dr. Reynolds’ teachers, who expressed concern and lack of understanding. After clarification the information was supplied a week late.

(5) The Fifth Count concerned Dr. Reynolds’ attendance on April 27, 1981 at a conference with the superintendent. Reynolds kept the appointment but refused to stay when the superintendent and the School Board attorney announced he was being terminated. After consulting his own counsel, Reynolds did return later the same day.

Count Four was the only substantial matter. In January 1981, the superintendent notified Reynolds he was to develop Flagler County’s plan for Title I, but no time deadlines were given. Reynolds complained about this assignment but he did not refuse to do it. On March 6, 1981, the superintendent requested a draft by April 15, 1981. When that date passed, he wrote to Reynolds that the draft should be furnished by April 23,1981. He also said: “If you are in need of assistance from this office or if you need more time to complete the planning draft, please let me know.” Reynolds respondent that he needed both. He met with the superintendent on April 23. At this meeting the superintendent agreed to give Reynolds both assistance and more time. Yet on April 27, he announced his decision to terminate Reynolds.

The terms “gross insubordination or willful neglect” are defined in 6B-4.09 of the Administrative Code as:

[a] constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.

The court in Smith v. School Board, 405 So.2d 183 (Fla. 1st DCA 1981) held that these definitions apply to the statutory terms of section 236.36(6), Florida Statutes (1981). It emphasized that a single act of contemptuous conduct does not constitute gross insubordination, and that the conduct complained of must be constant or continuing. Reynolds never refused to prepare the Title I plan. He requested more time and staff assistance. Further, the superintendent originally suggested both, and agreed to supply them. Had he sincerely felt Reynolds was being grossly insubordinate or willfully neglectful, he would not have offered them.

The essence of this controversy appears to me more a conflict of personalities than one involving insubordination or neglect. Further, if Reynolds’ conduct constituted insubordination or neglect, the record fails to establish why this conduct was “gross” or “willful.” In summary, if Reynolds’ conduct here was “gross” and “willful,” then almost any failure to follow a superior’s directives will rise to that level. See Erber v. Federal Express Corp., 409 So.2d 522 (Fla. 5th DCA 1982). “Insubordination” by itself has been defined as “contumacious, which indicates persistent, willful or overt defiance of authority and obedience, sometimes contemptuous of authority.” Muldrow v. Board of Public Instruction of Duval County, 189 So.2d 414, 415 (Fla. 1st DCA 1966).

      . § 231.36(6), Fla.Stat. (1981).


author: JOANOS, Judge.

text:
    In re Forfeiture of the following described property, 1968 DESCO SHRIMPING VESSEL, “STARGAZER”, I. D. NO. 573163. John Ware BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. AF-144.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Rehearing Denied Aug. 11, 1982.
    John R. Weed of Weed & Bishop, Perry, for appellant.
    Janet E. Ferris, Chief Staff Counsel, Florida Dept, of Law Enforcement, Tallahassee, for appellee.
   JOANOS, Judge.

The Florida Department of Law Enforcement obtained an Order of Forfeiture of the “Stargazer,” a shrimping vessel, on the basis that it had been used “to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article” in violation of Section 943.42 Florida Statutes (Supp.1980). We affirm.

The vessel was seized on September 6, 1980. Vernon Oblisk testified that on July 8, 1980, he drove Booker and Danny Stewart to Bradenton, Florida, leaving them off so that they could pilot the Stargazer to Steinhatchee. Oblisk drove back to Stein-hatchee and on July 9, early in the morning, he picked up Stewart and Booker from the Stargazer in Steinhatchee. The Stargazer remained anchored in the Steinhatchee River. On July 15,1980, the “Lady Stewart,” a boat owned by Stewart allegedly delivered several tons of marijuana in Panama City, Florida. Booker was arrested on July 17, 1980 in connection with this alleged delivery. The State prosecution against Booker was dropped, but Booker was convicted of federal charges stemming from the incident.

The State produced the testimony of agent M. R. Cornelius to the effect that at the time of Booker’s arrest, he told the agent the Stargazer had been used as a diversion to safeguard the delivery of marijuana from the Lady Stewart. In addition, Vernon Oblisk had earlier testified that a discussion had occurred at the home of Stewart, on July 7, regarding the importation of marijuana. He, Booker, and Stewart were present, and Booker said they would be unloading it in Panama City in about one week. Oblisk said that on July 18, after they had been arrested, Booker told him about the Stargazer’s role in the plan. In Oblisk’s words: “He said at that point that the Stargazer was put in the Steinhatchee River for a diversionary tactic, as a decoy to get the law enforcement people to be watching it, so on and so forth; while they were down there watching it, we’d be up in Panama City doing our thing.”

Appellant argues that the Stargazer cannot be said to have facilitated importation because there was no nexus between the illegal activity and the Stargazer, which lay anchored 200 miles from the scene of the alleged illegal activity, and there was no evidence that Booker engaged in any activity to further the intent to use the Stargazer as a decoy.

In Griffis v. State, 356 So.2d 297 (Fla.1978) the court construed the forefeiture act in light of its federal counterpart to apply “only upon a showing of ‘a nexus between the illegal drugs found in the car and the furtherance of an illegal drug ‘operation’.’ ” The court was concerned with distinguishing vehicles involved in drug “operations” from vehicles incidental to mere possession of illegal drugs.

The term “facilitation” is discussed more directly in Mosley v. State, 363 So.2d 172 (Fla. 4th DCA 1978). There the court quoted the following discussion taken from United States v. One 1950 Buick Sedan, 231 F.2d 219 (3rd Cir. 1956):

“The term ‘facilitate’ is a term used in everyday transactions between people. There is no indication that Congress ascribed to this word any meaning other than its ordinary and accepted meaning. Webster defines facilitate as ‘to make easy or less difficult; to free from difficulty or impediment; as, to facilitate the execution of a task.’
“The question then is whether there was a reasonable ground for belief that the use of the automobile made the sale less difficult and allowed it to remain more or less free from obstruction or hindrance.”

We reject appellant’s argument that the decoy must actually have succeeded in order for it to have facilitated the operation which culminated with the unloading of the contraband in Panama City. Given the expressed intent to use the Stargazer as a decoy and the action in furtherance of that intent of placing the Stargazer in the Stein-hatchee River, the setting up of the Stargazer as a decoy can be held to have facilitated the operation.

AFFIRMED.

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


author: THOMPSON, Judge.

text:
    Claude BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AG-477.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Rehearing Denied Aug. 11, 1982.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Kathryn L. Sands, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant was charged in a single count information with unlawfully entering or remaining in a dwelling with the intent to commit an offense therein in that “the entry was gained stealthily and without the consent of the owner or occupant” contrary to § 810.02, Fla.Stat. (1979). Defendant was found guilty of burglary of a dwelling and was sentenced to 15 years imprisonment. Defendant contends on appeal, among other things, that the state failed to carry its burden of proving intent to commit a particular crime. We affirm.

Since § 810.07, Fla.Stat., relied upon by the state in drafting the instant information, creates only a prima facie case of intent to commit an offense generally, the instant information was defective. See State v. Clark, 416 So.2d 13 (Fla. 1st DCA 1982); Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). Although defective, the information did charge defendant with the unlawful entry of the victim’s home with the intent to commit an unspecified offense therein. By not objecting to the state’s failure to allege the particular crime intended to be committed by way of a timely motion to dismiss, defendant waived the defect. See State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980). Our citation of Fields as authority for the defendant’s waiver of the defect should not be construed as approval of the dicta in the opinion that an allegation of stealthy entry contrary to § 810.02 is a sufficient allegation of a particular crime. Clark and Rozier. Furthermore, defendant has not shown that he was misled or embarrassed in the preparation of his defense or that he was prejudiced in the trial of the case as a result of the defective information. We therefore conclude that although the information was defective, it was not fundamentally so. We see no error in the remaining points raised by defendant on appeal. Accordingly, we affirm.

AFFIRM.

LARRY G. SMITH, J., concurs.

JOANOS, J., concurs in result only.


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

text:
    SEABOARD COAST LINE RAILROAD CO., Appellant, v. Tim HALKS, a minor, by and through his next friend and Guardian Ad Litem, Aldine Feagle, Appellee.
    No. AH-417.
    District Court of Appeal of Florida, First District.
    July 13, 1982.
    Rehearing Denied Aug. 11, 1982.
    Charles Vocelle, of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, P. A., Lake City, for appellant.
    Stephen A. Smith, of Smith & Smith, P. A., Lake City, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Seaboard appeals from a circuit court judgment assessing $5,200 in compensatory damages and $30,000 in punitive damages on a jury verdict for seven-year-old Tim Halks, who was injured when he fell upon plates of sharp metal spikes which Seaboard placed between the tracks on its railroad bridge over the Ichetucknee River. Ordinarily these menacing devices are used as cattle guards, but Seaboard installed them here to discourage children and others from walking on or jumping from its bridge, associated with the pasttime of tubing down the river, and from damaging Seaboard’s roadbed by throwing rock ballast into the river. We affirm.

Plaintiff proved a case sufficient for jury consideration on the question of punitive damages. We find no error in the other trial court rulings brought here for review. The significant issue is whether the trial judge was or is authorized to order a new trial should Seaboard refuse a remittitur of half the punitive damage award, $15,000. The trial court did not require this remitti-tur, nor did the judge order a new trial, but the court was deterred only by the district court’s decision in Jenkins v. Arab Termite and Pest Control of Florida, Inc., 388 So.2d 44 (Fla. 2d DCA 1980), which held that punitive damages may be judicially considered excessive only if the damages assessed by the jury amount to economic castigation. The trial judge’s assessment of the punitive damage verdict is here set out in full:

The acts of the Defendant which were the basis of the award of punitive damages were the installation of several sets of iron spikes along the road bed of the trestle which was commonly used by persons of all ages when swimming or tubing in the river. Said common use of the trestle as an exit point from the river by swimmers and tubers was well known to the Defendant. The minor plaintiff was seven years of age when he fell upon the spikes while crossing the trestle. This Court likens the evidence upon which the jury awarded and set the amount of punitive damages to be between two hypothetical opposite situations: the first being where a land owner secrets a land mine to be unknowingly set off by a trespasser to his damage. The opposite being where a landlord puts up “no trespassing” signs which a trespasser ignores to his injury. The evidence brings this case closer to the “no trespassing” situation than the “land mine” situation. The jury’s award of $30,000.00 punitive damages is grossly excessive and contrary to the evidence. The jury awarded one-third greater punitive damages than requested by Plaintiff’s attorney in closing argument. The tort committed is lacking the degree of maliciousness and/or outrageous disregard for Plaintiff’s rights required to sustain the amount of the verdict. The amount of the verdict shocks the sense of justice of the judicial mind so as to make an inference that the verdict evinces or carries an implication of passion or prejudice, partiality or improper influences or the like. In accordance with Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978) this Court would order a remittitur [of $15,000], and upon Plaintiff’s non-acceptance a new trial, except for Jenkins v. Arab Termite and Pest Control of Florida, Inc., 388 So.2d 44 (Fla. 2d DCA 1980) which appears to hold that post- Wackenhut there is only one permissible ground for a determination by a trial judge that a punitive damages award is excessive; this is that the amount of the award bears no relation to the amount the defendant is able to pay and results in economic castigation. Such conclusion is not warranted in this case.

After the appeal in this case, the Supreme Court decided Arab Termite and Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla.1982), and quashed the district court’s decision. While the premise of the trial court’s order, that the court lacked power to declare a punitive damage award excessive except on a ground not present in this case, has therefore been found by the Supreme Court to be faulty, we do not remand the case for further consideration by the trial court in light of the Supreme Court’s decision; rather we decide now the inevitable question of the propriety of judi-cally declaring this $30,000 punitive damage verdict award excessive on the ground or grounds stated by the trial judge, namely:

The tort committed is lacking the degree of maliciousness and/or outrageous disregard for Plaintiff’s rights required to sustain the amount of the verdict. The amount of the verdict shocks the sense of justice of the judicial mind so as to make an inference that the verdict evinces or carries an implication of passion or prejudice, partiality or improper influences or the like.

We take this course, rather than remanding to the trial court for a further order in light of the Supreme Court’s decision, because Seaboard has not suggested that any improper influences upon the jury can be established by an additional record, because the trial judge plainly based his expressed views upon considerations arising from the evidence and other circumstances of record, and because we conceive that no further explication of the trial judge’s views, if that were theoretically possible, can alter our conviction that the jury’s verdict was not beyond the dollar range in which the jury could properly have fixed the punitive award in a case otherwise suitable for the award of punitive damages. Nothing, therefore, could be accomplished by remanding for a further elaboration of the trial judge’s reasons for reducing the award from $30,000 to $15,000.

The question is whether the jury’s punitive damage award can be characterized as “out of all reasonable proportion to the malice, outrage, or wantonness of the tor-tious conduct.” Arab Termite, 409 So.2d at 1043. Because the amount of the award was relatively small in comparison to Seaboard’s ability to pay, not nearly approaching economic castigation, we view the proposed remittitur in absolute terms, as remitting $15,000, rather than in comparative terms, as reducing the award by half. Considered in that light, we are persuaded that a verdict seeming to require such a modest correction cannot be considered “out of all reasonable proportion” to the magnitude of the wrong remedied. A remittitur of that amount, in the circumstances of this case, would represent too fine an adjustment of the jury’s collective judgment on a matter that remains peculiarly within its special competence. In other words, we think a jury question on punitive damages was presented and that, given all the circumstances shown by the record and elaborated in the trial court’s order, the verdict cannot be considered “out of all reasonable proportion” to Seaboard’s behavior because it was $15,000 more than the upper limit envisioned by the trial court.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: McCORD, Judge.

text:
    Dean S. REBICH, employee, Robert K. Fabric, M.D., Appellants, v. BURDINE’S AND LIBERTY MUTUAL INSURANCE COMPANY, Appellees.
    No. AH-412.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Aug. 11, 1982.
    Stuart F. Suskin of Abrams & Suskin, North Miami Beach, for appellants.
    C. Randal Morcroft, Fort Lauderdale, for appellees.
   McCORD, Judge.

Dr. Robert K. Fabric, the claimant’s treating physician, appeals from a workers’ compensation order finding that certain of his claims for payment of services rendered to the claimant are barred by the two year statute of limitations of Section 440.19, Florida Statutes. Fabric essentially argues that because physicians are not specifically mentioned in Section 440.19, his claims are governed by the four year statute of limitations for breach of contract contained in Section 95.11(3)(k), Florida Statutes, and are thus timely. We agree and reverse.

A brief legislative history will aid in framing this issue. Prior to 1974, a physician did not have independent standing under Chapter 440, Florida Statutes to bring an action against an insurance company for the payment of his outstanding bill or bills before a deputy commissioner (then judge of industrial claims). § 440.10(1), Fla.Stat. (1973); Eastern Elevator Co. v. Hedman, 290 So.2d 56 (Fla.1974). That statutory provision was subsequently amended to bring doctors’ claims for workers’ compensation bills under the provisions of the Act. Ch. 74-197, § 6, Laws of Fla. However, in none of the various permutations of Section 440.19 has the legislature seen fit to specifically include a physician’s claim within that statute’s ambit. We conclude that the court may not remedy this omission.

For guidance we turn to generally accepted principles of statutory construction. Usually, the courts in construing a statute may not insert words or phrases in that statute or supply an omission that to all appearances was not in the minds of the legislators when the law was enacted. Armstrong v. Edgewater, 157 So.2d 422 (Fla.1963). When there is doubt as to the legislative intent, the doubt should be resolved against the power of the court to supply missing words. In Re: Estate of Jeffcott, 186 So.2d 80 (Fla. 2d DCA 1966). Since the omission of the term “physician” from Section 440.19 certainly renders doubtful a legislative intent that his or her claims be specifically included, we decide against construing this statute in such a way. This conclusion is buttressed by the corollary doctrine of expressio unius est ex-clusio alterius. Under that doctrine, where a statute enumerates the thing or things on which it is to operate, it is ordinarily to be construed as excluding from its operation all those things not expressly mentioned. Thayer v. State, 335 So.2d 815 (Fla.1976); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944).

Alternatively, it has been held that where there is a reasonable doubt concerning the legislature’s intention to provide for a shortened limitation period, the benefit of the doubt should be given to the plaintiff. See Haney v. Holmes, 364 So.2d 81 (Fla. 2d DCA 1978). As Dr. Fabric is the plaintiff in this dispute below, he should be given the benefit of the doubt as to the inapplicability of Section 440.19.

Accordingly, for the reasons stated above, we REVERSE and REMAND for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.


text:
    SEARS TERMITE & PEST CONTROL and Maryland Casualty Company, Appellants, v. Ronald REEVES, Appellee.
    No. AI-140.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Aug. 11, 1982.

      Richard H. Gaunt, Jr., West Palm Beach, for appellants.
    Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellee.
   McCORD, Judge.

In this workers’ compensation appeal the employer/carrier raises a host of issues, most of which do not merit extended discussion. However, we do agree with the contention that the claimant failed to establish his entitlement to wage-loss benefits under Section 440.15(3)(b)2, Florida Statutes (1979). We also find it appropriate to discuss the deputy’s finding that claimant is entitled to attorney’s fees.

On June 25,1980, the claimant, a 23-year-old male with a high school education and several years of college, suffered an injury to his back and neck as the result of an automobile collision while on company time. He reached maximum medical improvement on November 18, 1980, with a 20% permanent physical impairment of the body as a whole. Upon being released by his physician, he obtained work as a machine operator for two to three months but quit because of his back pain. He subsequently obtained employment as a special agent for an insurance company; however, he was soon fired for being caught sleeping on the job. He then made applications at approximately ten other places of employment, only two of which had jobs actually available.

Upon these facts, we find that the claimant has not met his burden of establishing “that any wage loss claimed is the result of the compensable injury.” § 440.-15(3)(b)2, Fla.Stat. (1979). While claimant is subject to a 20% permanent partial impairment rating, his relative youth and the extent of his educational background dictate a more extensive job search than that undertaken. In fact, his tenure as a special agent for the insurance company suggests quite strongly that he is able to obtain employment despite his compensable injury. Accordingly, we reverse the deputy’s award of wage-loss benefits from August 27, 1981, to October 1, 1981.

Without elaborating upon his reasons for doing so, the deputy found that the claimant was entitled to attorney’s fees. As noted previously, this accident occurred on June 25, 1980. Hence, it is governed by the attorney’s fees provisions of Section 440.34(2), Florida Statutes (1979). Since this case did not involve a claim for medical benefits only and there is no contention that the carrier acted in bad faith, neither Subsection (a) nor (b) of Section 440.34(2) could justify the deputy’s finding. However, Subsection (c) authorizes an attorney’s fee “(i)n a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.” One of the employer/carrier’s defenses was that the claimant knowingly misrepresented his physical condition on his employment application, thus precluding an award of benefits. See Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961). This defense was rejected by the deputy, and we affirm his finding. Since this defense has the practical effect of denying that the injury suffered was a com-pensa ble injury, we conclude that attorney’s fees are appropriate pursuant to Section 440.34(2)(c), Florida Statutes (1979).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Edward OXX, Appellee.
    No. 81-990.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellee.
   COWART, Judge.

This case involves the claim that section 951.22, Florida Statutes, which makes it unlawful to introduce into, or possess upon, the grounds of any county detention facility certain contraband items, is unconstitutional because the statute does not explicitly require knowledge of the possession, which is claimed to be a necessary ingredient of an essential element of specific intent.

While appellee was a prisoner in the Orange County correctional institution, he was charged with introducing marijuana into, or possessing marijuana upon, the grounds of that institution in violation of Florida Statute 951.22, Florida Statutes (1981). Appel-lee filed three motions to dismiss: one attacking the sufficiency of the information itself, a 3.190(c)(4) motion directed to the facts, and a motion attacking the constitutionality of section 951.22, Florida Statutes (1981). The court subsequently granted an unspecified one of these motions to dismiss with leave to amend. The State then filed an amended information alleging the appel-lee did, in violation of Florida Statute 951.-22, “unlawfully” introduce or possess cannabis upon the grounds of this county detention facility. The appellee then filed a fourth motion to dismiss directed towards the allegations in the information as amended. The trial court dismissed the amended information, specifically finding section 951.22 unconstitutional “in that said statute does not require mens rea or scien-ter on the part of the defendant as an essential element for conviction, thereby making criminal unknowing possession.” The State appeals.

At common law, all crimes consisted of an act or omission coupled with a requisite mental intent or mens rea. Notwithstanding this common law requirement, it was long ago recognized that the legislature has the power to dispense with the element of intent and thereby punish particular acts without regard to the mental attitude of the offender. However, this power is limited by certain constitutional constraints. First, an overall general distinction is drawn between statutes codifying crimes recognized at common law and statutes that proscribe conduct not prohibited at common law. The common law crimes were commonly referred to as crimes mala in se or “infamous” crimes; as such, intent was considered to be so inherent in the idea of the offense that it was deemed included as an element, even though the statute codifying the offense failed to specify an intent element. In contrast, the latter category of crimes (those proscribing conduct not prohibited at common law) were generally classified as crimes mala prohibita, and the doing of the act was considered punishable, regardless of intent. A second restriction on this legislative power is imposed where the statute would tend to chill the exercise of first amendment rights if intent were not required. Finally, a third constitutional restriction may come into play where the statute imposes an affirmative duty to act and then penalizes the failure to comply. In such an instance, if the failure to act otherwise amounts to essentially innocent conduct, the failure of the penal statute to require some specific intent or knowledge may violate due process.

In the instant case, section 951.22 provides in part:

951.22 County detention facilities; contraband articles
(1) It is unlawful ... 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 . .. controlled substances as defined in s. 893.02(3).. . .

As such, the statute describes a crime ma-lum prohibitum, not malum in se, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); nor does the statute appear to chill a person’s exercise of his or her first amendment rights, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); nor does the statute violate Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), principles since it punishes certain affirmative acts, not a failure to act. Thus the legislature had the power to dispense with the element of intent in defining this crime. Therefore the trial court erred in holding the statute unconstitutional because it did not require mens rea or scienter on the part of the appellee.

In its order, the trial court held that the failure of the statute to expressly require mens rea or scienter made unknowing possession a criminal offense. This is not correct. Knowledge of possession is generally considered a part of the definition of possession as used in criminal statutes making possession a crime. Section 893.13, Florida Statutes (1981), prohibiting the actual or constructive possession of a controlled substance, and its predecessors, have never specifically required “knowing” possession, yet possession has always been defined to include knowledge of the same. A similar construction has been placed on other criminal possession statutes. Although the legislature may punish an act without regard to any particular (specific) intent, the State must still prove general intent, that is, that the defendant intended to do the act prohibited.

Proof of an act does raise a presumption that it was knowingly and intentionally done. However, there is a distinction in presuming knowledge from actual possession and from constructive possession in that the State can make out a prima facie case of knowledge by proof of actual or exclusive constructive possession but proof of non-exclusive constructive possession alone is insufficient to justify an implication of knowledge. In the latter situation, the State must present some corroborating evidence of knowledge to establish a prima facie case.

In summary, the statute in the instant case is constitutional. Further, possession in the context of this statute means possession and knowledge of the same, and appel-lee’s knowledge (or lack of knowledge) of his possession is, subject to an appropriate instruction, an issue for the jury.

REVERSED AND REMANDED.

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

      . Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942).

      . Various criminal statutes have been upheld constitutionally and interpreted to not require intent as an element. See, e.g., State v. Hough-taling, 181 So.2d 636 (Fla.1965) (section 517.07 prohibiting the sale of unregistered securities and section 517.12 prohibiting selling securities without being registered as a dealer or salesman); Simmons v. State (crime of committing carnal intercourse with an unmarried female under the age of eighteen of previous chaste character); La Russa v. State, 142 Fla. 504, 196 So. 302 (1940) (statute prohibiting printing lottery tickets); Coleman v. State ex rel. Jackson, 140 Fla. 772, 193 So. 84 (1939) (possessing a beverage containing more than one percent alcohol without paying excise tax); State ex rel. Lanz v. Dowling, 92 Fla. 848, 110 So. 522 (1926) (disposing of personal property that is subject to a lien without the lienee’s permission); Smith v. State, 71 Fla. 639, 71 So. 915 (1916) (statute prohibiting malpractice in office); Mills v. State, 58 Fla. 74, 51 So. 278 (1910) (selling property subject to liens without the lienee’s permission). Although no specific intent may be required, later cases indicate the State must still prove general intent, that is, that the defendant intended to do the act prohibited; however, intent is inferred from the act itself. See, e.g., State v. Medlin, 273 So.2d 394 (Fla. 1973) (unlawful delivery of a barbituate to a minor); Simmons v. State; La Russa v. State. If the defendant then puts intent or knowledge in issue, the question is for the jury. State v. Medlin; Broic v. State, 79 So.2d 775 (Fla.1955) (possession of marijuana).

      . See, e.g., Morissette v. United States (federal codification of common law crimes of theft did not dispense with intent element); Bell v. State, 394 So.2d 979 (Fla.1981) (legislature did not intend to do away with specific intent in defining the crime of robbery).

      . The mala prohibita crimes were considered to be regulatory in nature and were enacted to protect the public health, safety and welfare. Unlike their common law counterparts, many such crimes result from neglect where the law requires care, or inaction where the law imposes a duty to act; they may not result in direct injury to persons or property but merely create a danger or possibility of danger that the law seeks to minimize. In this sense, whatever the intent of the violator, the injury is the same. Thus, where codifying crimes mala in se, intent is required, Morissette v. United States, but where codifying crimes mala prohibita, intent can be disposed of. See, e.g., United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (statute making it criminal to receive or possess a firearm which is not registered does not require mens rea); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (statute making it illegal to sell opium without authority did not require proof of intent); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922) (companion case to Balint involving the same statute).

        . See, e.g., Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (statute making it illegal to possess any obscene or indecent writing, without requiring scienter or mens rea, was unconstitutional in that it tended to inhibit people from validly exercising their first amendment freedoms). In this instance, although the statute may not specifically require it, scienter can be read into the statute, thus saving it from constitutional attack. See, e.g., Cohen v. State, 125 So.2d 560 (Fla.1960). In Cohen, the Florida Supreme Court addressed a statute similar to the one previously struck down in Smith v. California. In order to find the statute constitutional, the Florida Supreme Court held scienter was impliedly included, and therefore required the State to charge and prove this element.

      . See, e.g., Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In Lambert, a Los Angeles municipal ordinance required people previously convicted of a felony who remained in Los Angeles for a period of more than five days to register with the chief of police. Focusing on the fact that the statute punished a failure to act without requiring a showing of knowledge of the duty to act, the Supreme Court struck down the ordinance as a violation of due process.

      . Section 951.22, Florida Statutes (1979) has previously been upheld under constitutional attacks for vagueness, see, e.g., State v. Ashcraft, 378 So.2d 284 (Fla.1979); Gissendanner v. State, 373 So.2d 898 (Fla.1979); McClish v. State, 404 So.2d 144 (Fla. 5th DCA 1981), and overbreath. See, e.g., State v. Ashcraft.

        . This definition of possession has been stated various ways. See, e.g., Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981) (constructive possession entails (1) dominion and control, (2) knowledge of the existence of the contraband and (3) knowledge of the contraband’s illicit nature); Daudt v. State, 368 So.2d 52 (Fla. 2d DCA), cert. denied, 376 So.2d 76 (Fla.1979) (actual possession exists where accused has “knowing physical possession of a controlled substance”); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977) (elements of crime of possession are the suspect’s knowledge and his ability to maintain control over the substance); Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975) (actual possession exists where defendant has physical possession of the controlled substance and knowledge of such physical possession); Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973) (possession or control means ... actual physical possession with knowledge of the same).

        . See, e.g., Williams v. State, 413 So.2d 1263 (Fla. 1st DCA 1982) (crime of introduction of contraband into a state correctional facility (§ 944.47) requires knowledge); State v. Craig, 413 So.2d 863 (Fla. 1st DCA 1982) (crime of possession of a weapon by a prisoner (§ 944.-43, Fla.Stat. (1979)) requires “knowing” possession).

        . See, e.g., State v. Medlin, 273 So.2d 394 (Fla.1973); Broic v. State, 79 So.2d 775 (Fla.1955). In Medlin, the appellee was charged with unlawfully delivering a barbiturate to a minor. The evidence was undisputed that the defendant gave a minor certain pills but there was no evidence that the defendant knew the pills were barbiturates. The supreme court held that proof of doing the act raised a presumption that the act was knowingly and intentionally done. Although the defendant could put his lack of knowledge in issue, the supreme court held the issue would then be for the jury to decide. Similarly, in Broic, appellant was charged with possession of marijuana without license or authority. The defendant appealed, arguing the evidence was insufficient that he “knowingly or intentionally” possessed the drug because he was intoxicated at the time. The court held this issue was for the jury, who were not bound to believe the appellant.

      . See, e.g., Williams v. State, 413 So.2d 1263 (Fla. 1st DCA 1982); State v. Craig, 413 So.2d 863 (Fla. 1st DCA 1982); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).

      . See, e.g., Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977).

      . Although the appellant filed a 3.190(c)(4) motion alleging he had no knowledge of his possession of the controlled substance, appellant’s knowledge of the possession can be inferred from the act of actual possession. Since knowledge, like intent, must usually be gleaned from the surrounding circumstances, that issue is for the jury and should not be disposed of via a (c)4 motion. See, e.g., State v. Craig, 413 So.2d 863 (Fla. 1st DCA 1982); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).


author: CAMPBELL, Judge.

text:
    William J. HOLTERHAUS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2540.
    District Court of Appeal of Florida, Second District.
    July 23, 1982.

      Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

William J. Holterhaus appeals the revocation of his probation for violation of conditions (1) and (8); that is, for failure to file monthly reports (the required monthly report was received one day late in April and two days late in June), and failure to comply with all instructions of the probation officer. The latter condition was found to have been violated when Holterhaus was terminated from the DACCO Drug Rehabilitation Program after his probation officer instructed him to enroll in, attend and complete the program.

We reverse. The probation officer’s directive that Holterhaus complete the DAC-CO Program was not a validly imposed court-ordered condition of probation and was not encompassed by the requirement of condition (8) that the probationer comply with all instructions given by the officer.

Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977), established that probation may only be revoked for violation of a condition which is imposed by the court, rather than by a probation officer. In Watkins v. State, 368 So.2d 363 (Fla. 2d DCA 1979), this court found that application of Barber would be contrary to the intent of probation because the nature of the probation officer’s instruction — a routine direction to file monthly reports — was dispositive. In a situation where the officer merely gives normal supervisory directions of this nature, it is not necessary for the court to specifically approve those directions in order for disobedience of them to constitute a violation of probation.

In the instant case, the requirement imposed by the probation officer that Holter-haus attend DACCO is not such a matter of routine supervision as to fall within the ambit of Watkins. The requirement that a probationer complete a drug, program is not such a reasonable and necessary condition of supervision that it could be specifically delegated merely by such a broad directive as is condition (8).

In light of Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978); Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978); and Barber, we would reverse this probation revocation and remand in order for the trial court to consider whether there were other violations or whether the technical violation of condition (1) was sufficient to support the revocation of probation, standing alone. Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976).

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

      . Condition (8) reads as follows: You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.


author: PER CURIAM: ERVIN, Judge,

text:
    SEARS TERMITE & PEST CONTROL and Maryland Casualty Company, Appellants, v. Debra A. SPEARMAN, Appellee.
    No. AB-142.
    District Court of Appeal of Florida, First District.
    July 23, 1982.

      Wendell J. Kiser and W. Michael Miller of Akerman, Senterfitt & Edison, Orlando, for appellants.
    Lealand L. Lovering of Lovering, Pound & Lober, Cocoa, and Harold E. Regan, Tallahassee, for appellee.
   PER CURIAM:

The employer/carrier appeals a workers’ compensation order awarding temporary total disability benefits since the date of the accident and continuing, payment of outstanding medical bills, remedial medical care and costs. We affirm as supported by competent substantial evidence the deputy’s finding of a causal connection between claimant’s May 1, 1980 industrial accident and her subsequent back condition. Accordingly, the award of outstanding medical bills, remedial care and treatment and costs is also affirmed.

However, the award of temporary total disability benefits subsequent to May 13,1980 must be reversed, as there was no showing of an adequate work search or competent substantial evidence excusing same. See Palm Beach Newspapers, Inc. v. Boston, 404 So.2d 174 (Fla. 1st DCA 1981). Further, although the deputy’s reservation of jurisdiction to determine claimant’s entitlement to attorney’s fees was proper, we strike as gratuitous at this time the deputy’s statement in the order that “[t]he evidence submitted to this point indicates that the employer/carrier, in bad faith, denied benefits to the claimant and she sustained economic loss.” This finding was improper, as the question of entitlement to attorney’s fees on the basis of bad faith was not specifically presented or litigated below, and a deputy “may not simply infer from general testimony that bad faith exists.” Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033, 1035 (Fla. 1st DCA 1981).

The order appealed from, as amended, is affirmed in part and reversed in part.

BOOTH and THOMPSON, JJ., concur.

ERVIN, J., concurs in part and dissents in part with written opinion.

ERVIN, Judge,

concurring in part and dissenting in part.

I concur in all facets of the majority’s opinion except that part reversing the award of temporary total benefits subsequent to May 13, 1980. As to my reasons for disagreement, I rely upon the views expressed in my dissent to Lake County Commissioners v. Walburn, 409 So.2d 153, 155 (Fla. 1st DCA 1982). Additionally, I would note that the continuing efficacy of the majority’s opinion in Walburn, requiring that an employee prove that his work search was unsuccessful due to his disability, rather than unavailability of work, has been called into questipn by this court’s recent opinion in Regency Inn v. Johnson, -So.2d-, no. AE-354, 7 FLW 1285 (Fla. 1st DCA, June 16,1982). Regency Inn seeks to recede from the above aspect of the Walburn opinion and is to be orally argued before this court en banc on July 21, 1982, At the very minimum, I would withhold judgment in this case as to the question of the adequacy of the claimant’s work search until the divergent views of Walburn and Regency Inn have been reconciled by the court as a whole.

      . On this date, the treating physician released claimant to return to light work or part-time work.


author: PER CURIAM.

text:
    PLYMOUTH CITRUS PRODUCTS, self-insured, and Corporate Group Service, Inc., Servicing Agent, Appellants, v. Clezella JACKSON and Department of Labor and Employment Security, Appellees.
    No. AF-120.
    District Court of Appeal of Florida, First District.
    July 23, 1982.

      C. E. Miller of Miller & Cooper, P. A., Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Keteham, P. A., Orlando, for ap-pellees.
   PER CURIAM.

The employer/carrier (E/C) appeals a compensation order finding that claimant’s injury to her left knee was causally related to an industrial accident and that penalties should be awarded for late payment of benefits. We AFFIRM in part, REVERSE in part, and REMAND with directions.

Claimant fell on January 17,1980, and suffered an injury for which she received temporary total disability benefits through March 8, 1980. She was seen by numerous doctors, but continued to complain of pain, an inability to work, and ineffective medical treatment. On February 2, 1981, the claimant formally requested, by letter, medical treatment from Dr. James C. Johnson. The self-insured employer informed her on February 4, that it would not authorize treatment by Dr. Johnson or any other treating physician in this case. Notwithstanding a lack of authorization, she was examined by Dr. Johnson, who discovered that she suffered from a recurrent dislocation of the left kneecap which he attributed to the January 17, 1980, accident. We find no error in the deputy’s reliance upon the testimony of Dr. Johnson and his determination that the claimant was temporarily totally disabled from the date of the accident to the date of the hearing, except for two weeks of temporary employment. We affirm Points I, II, and III accordingly.

Having determined that temporary total disability benefits are due the plaintiff, the award of penalties is proper unless nonpayment of benefits resulted from conditions over which the employer had no control, or notice to controvert was properly filed with the division. The latter exception is not applicable in this instance, but it appears from the record that prior to February 4,1981, the denial of benefits resulted from conditions over which the employer had no control. Information available to the employer prior to that date indicated that the claimant was able to work and therefore not entitled to temporary total benefits. This situation, however, no longer existed after receipt of the February 2 letter which should have put the carrier on notice that the claimant’s condition needed investigation. Having elected to deny the requested authorization, the employer is now in a poor position to complain of penalties in light of the deputy’s acceptance of Dr. Johnson’s testimony confirming the temporary total disability. Penalties should run from the February 4, 1981, denial of medical authorization. Continued ignorance of the claimant’s condition was self-imposed.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

MILLS, LARRY G. SMITH, and SHAW, JJ., concur.


text:
    Walter HANDLEY, Appellant, v. NAPOLEON STEEL CONTRACTORS, INC., and Home Indemnity Company, Appellees.
    No. AF-183.
    District Court of Appeal of Florida, First District.
    July 23, 1982.

      R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellant.
    Barry A. Pemsler of Richard, Tharpe & Pemsler, Miami, for appellees.
   McCORD, Judge.

This is an appeal from the deputy commissioner’s order dismissing appellant’s workers’ compensation claim against appel-lees for failure to diligently prosecute. We affirm.

Appellant filed his claim in October 1972, but no action has ever been taken on the claim. Appellant concedes that all benefits due have been paid and no benefits are presently pending. However, he does have a degenerative condition for which he desires to leave his claim open for future benefits.

Appellees paid compensation benefits to appellant until 1977 and made their last payment of medical benefits to appellant sometime before November 1978. Workers’ Compensation Rule 11(b) provides:

Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years is subject to dismissal for lack of prosecution.

Pursuant to the above rule, the deputy commissioner was correct in dismissing appellant’s claim.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    DADE AMERICAN HOSPITAL SUPPLY and Kemper Insurance, Appellants, v. Manuel PEREZ and the Division of Workers’ Compensation, Appellees.
    No. AF-239.
    District Court of Appeal of Florida, First District.
    July 23, 1982.

      Summers Warden, Miami, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   PER CURIAM.

Claimant suffered a compensable back injury on October 13, 1978, which led to his eventual termination from employment on September 15,1980, due to his high incidence of absenteeism. The deputy commissioner awarded temporary total disability benefits for two periods of hospitalization, in June and in August, 1980, and for a third period beginning September 7, 1980, and extending through November 12, 1980, the date of maximum medical improvement. The claimant concedes that the award of temporary total disability benefits after termination of his employment was error in that there was no evidence of a good faith work search during the period following September 15, 1980. The awards of temporary total disability benefits after September 15 and of permanent partial disability benefits based on loss of wage earning capacity accordingly are reversed. An award based on loss of wage earning capacity in excess of physical impairment cannot stand absent a good faith work search. University of West Florida v. Nall, 404 So.2d 381 (Fla. 1st DCA 1981).

Dr. Ortiz testified for the employer/carrier that claimant had a five per cent permanent physical impairment based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1977) (Guides). Dr. Gilbert, upon whom the deputy relied, testified that claimant had a ten to fifteen per cent permanent anatomical impairment, but he did not consult the Guides. Use of Dr. Gilbert’s rating was technical error. Section 440.-15(3)(a)3, Florida Statutes (1979). However, this matter could easily have been brought to the deputy’s attention during the thirty-day period before the order became final. Section 440.25(4)(a), Florida Statutes (1981); Acosta Roofing Co. v. Gill-yard, 402 So.2d 1321 (Fla. 1st DCA 1981). We will not reverse as to such a readily correctable error which was not substantially raised before the deputy. Sunland Hospital/State of Florida v. Garrett, 783 So.2d 415 (Fla. 1st DCA 1982) [1982 FLW 1222], Cross examination of Dr. Gilbert on his use of the Guides does not constitute substantially raising the issue before the deputy. The award of fifteen per cent permanent physical impairment is affirmed.

The employer/carrier’s concern over the timing of the hearing on wage earning capacity diminution under section 440.25(3)(a), Florida Statutes (1978), is extinguished by our reversal of the award based on loss of wage earning capacity. The remaining points raised by the employer/carrier are without merit, and the order is otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

MILLS, LARRY G. SMITH, and SHAW, JJ., concur.


author: WENTWORTH, Judge.

text:
    Clarence Howard MILLS, Appellant, v. Hazel I. MILLS, Appellee.
    No. AH-5.
    District Court of Appeal of Florida, First District.
    July 23, 1982.
    James G. Etheredge, Fort Walton Beach, for appellant.
    Paul G. Komarek, Panama City, for ap-pellee.
   WENTWORTH, Judge.

This appeal challenges an order modifying the parties’ 1971 divorce decree. The modification order increased the wife’s permanent periodic alimony from $200 per month to $500 per month, and ordered that the alimony “shall increase automatically in an amount equal to one-half of the gross of any increase received by the husband in [military] retirement income, ...” Appellant is a retired Air Force colonel who receives regular increases in his retirement benefits based on the consumer price index.

Relying on the principles discussed in McCarty v. McCarty, appellant argues that the trial judge erred in awarding alimony to appellee in the amount of a fixed percentage of his retirement pay. This argument was rejected in Cullen v. Cullen, 413 So.2d 1196 (Fla. 1st DCA 1982), and need not be further treated. However, appellant here challenges the award on a ground not raised in Cullen. The award provides for automatic increases in alimony, which according to appellant amount to automatic modifications without requiring evidence of changed need or ability to pay. For reasons discussed below, we find that the award was not an abuse of discretion.

Decisions which have reversed alimony awards containing automatic increases have involved situations where there is no evidence that the paying spouse’s ability to pay will increase in correlation with the increases provided in the award. See Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979); Reid v. Reid, 365 So.2d 1050 (Fla. 4th DCA 1978). In this case, however, the increases will occur only in proportion to an increase in appellant’s ability to pay. And since the increases are based on a cost of living index, the appellee’s need will necessarily increase proportionately, subject of course to the continuing right of the parties to prove any independent change of condition which might affect need or ability to pay. Thus, the award is actually designed to maintain the status quo, not to provide for modifications based on changed circumstances. If changed circumstances do arise in the form of a decrease in the appellee’s needs, or in the appellant’s overall ability to pay, the appellant will, as noted, be free to seek a modification at that time.

While there does not appear to be a Flori-. da case directly on point, Spotts v. Spotts, involved an analogous child support order. In Spotts, the husband was required to pay $300.00 per month per child and “to increase the child support $10.00 per month per child for each $1,000 per annum of the husband’s net income which exceeds $20,-000.00 .. . . ” Spotts at 229. We recognize that child support obligations and alimony obligations often involve different considerations, but the primary concerns in both are the obligor’s ability to pay and the needs of the recipients. In affirming the award in Spotts, we noted that:

The formula used by the court is precise and definite and will save time and money of all involved because they will not be returning to court every time the husband’s net income increases. The husband’s right to move for modification under appropriate circumstances is still preserved.

Id. at 229. The same reasoning applies to the alimony award in this case.

Appellant also challenges the increase in the basic alimony award on the grounds that appellee did not demonstrate a sufficient change in circumstances to warrant it. We have examined the record, and find no abuse of discretion on the part of the trial judge. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

For the foregoing reasons, the modification order is affirmed.

ERVIN and SHIVERS, JJ., concur.

      . 10 U.S.C. § 1401a provides in pertinent part: § 1401a. Adjustment of retired pay and retainer pay to reflect changes in Consumer Price Index.
      (a) Unless otherwise specifically provided by law, the retired pay or retainer pay of a member or former member of an armed force may not be recomputed to reflect any increase in the rates of basic pay for members of the armed forces. In this section, “Index” means the Consumer Price Index (all items, United States city average) published by the Bureau of Labor Statistics.
      (b) Each time that an increase is made under section 8340(b) of title 5 in annuities paid under subchapter III of chapter 83 of such title, the Secretary of Defense shall at the same time increase the retired and retainer pay of members and former members of the armed forces by the same percent as the percentage by which annuities are increased under such section.
      5 U.S.C. § 8340(b) provides:
      (b) Except as provided in subsection (c) of this section, effective March 1 of each year each annuity payable from the Fund having a commencing date not later than such March 1 shall be increased by the per cent change in the price index published for December of the preceding year over the price index published for December of the year prior to the preceding year, adjusted to the nearest Vio of 1 percent.

      . 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

      . Alimony is of course based on the needs of one spouse and the ability of the other spouse to pay. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). It is equally well established that modification of an alimony award may be granted only upon a showing of change in either the needs of the recipient spouse or the ability of the providing spouse to pay. Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980).

      . We note that it is proper to consider anticipated increases in the paying spouse’s income when determining the amount of alimony. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Cocalis v. Cocalis, 103 So.2d 230 (Fla. 1958).

      . See footnote 1.

      . 355 So.2d 228 (Fla. 1st DCA 1978).


author: NESBITT, Judge.

text:
    Willie McGRIFF, Appellant, v. The STATE of Florida, Appellee.
    No. 81-149.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

Defendant appeals from his convictions for aggravated assault and the unlawful display of a firearm during the commission of a felony. We affirm.

The defendant, McGriff, and another man, Hampton, got into an argument with some workers at a construction site. The foreman, David Wall, attempted to break up the argument, and sent the two men away. McGriff and Hampton walked toward their car. McGriff turned and fired a shot which passed between Wall and another employee. Hampton fired a shot which hit Wall in the foot. McGriff was charged with aggravated assault and unlawful display of a firearm during the commission of a felony. Hampton was tried separately on charges of aggravated battery and unlawful display of a firearm during the commission of a felony.

At McGriff’s trial, Wall was permitted to testify, without objection, that Hampton shot him in the foot. Over objection, the victim then testified as to the past and future medical treatment he required as a result of these injuries. The appellant claims, as a basis for reversal, that the evidence of the extent of the injury caused by another person was inadmissible at McGriff’s trial.

A witness may testify as to the extent of an injury or show the injury itself where it is relevant to the crime charged against the defendant. See Huggins v. State, 129 Fla. 329, 176 So. 154 (Fla.1937) [in prosecution for assault with intent to commit murder, no error in allowing victim to exhibit scars since scars were physical evidence of character of assault]; Harmon v. State, 48 Fla. 44, 37 So. 520 (Fla.1904) [under indictment covering various degrees of assaults, including aggravated and simple assaults, evidence that the assaulted person suffered great pain is not immaterial]; Waddy v. State, 355 So.2d 477 (Fla. 1st DCA), cert. denied, 362 So.2d 1056 (Fla.1978) [no error in showing victim to jury in defendant’s prosecution for child abuse]. The present case does not fall within this category because the injuries described to the jury were inflicted at the hands of a co-defendant who was tried separately. Clearly, those injuries are not relevant to the charges against McGriff. Each person charged with the commission of a crime must be tried upon evidence legally tending to show his guilt. Cf. Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967) [improper to disclose that co-defendant was found guilty].

In the present case, we find that the introduction of such testimony was harmless error due to the manner in which this case was tried. Once the victim was permitted to testify without objection that he was shot by the co-defendant, we see no prejudicial error in allowing him to briefly state the nature of his injury.

Appellant next contends that his sentence pursuant to the Youthful Offender Act, Chapter 958, Florida Statutes (1979), was improper because he was assessed a one year minimum mandatory sentence without written findings of the aggravating factors as required by Section 958.05(3), Florida Statutes (1979). We disagree.

The trial judge, at the sentencing hearing, specifically found that the defendant’s conviction for the unlawful display of a firearm constituted a finding of the existence of aggravating factors used for the imposition of the minimum mandatory one-year sentence. This was announced in open court and has been made part of the record on appeal. Since this court has the opportunity to review the transcript of the trial court’s findings, we determine that there has been no prejudice to the defendant. See Eastwood v. Hall, 258 So.2d 269 (Fla. 2d DCA 1972). We therefore affirm the sentence but remand for the trial judge to reduce his findings to writing.

Finally, we observe that in light of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the defendant may be convicted of both aggravated assault and the unlawful display of a firearm during the commission of a felony.

Affirmed and remanded with directions.

      . R. B. S. v. Capri, 384 So.2d 692 (Fla. 3d DCA 1980) relied upon by appellants is limited to cases concerning the denial of bail. See J?. B. 5., supra, at 696 & n.ll where the court distinguished Eastwood v. Hall on the basis that it was not a denial of bail case.


text:
    WINCHESTER CORPORATION, Appellant, v. MIAMI FREE ZONE CORPORATION, Appellee.
    No. 81-957.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Sage, Gray, Todd & Sims and Herschel E. Sparks, Jr., and Robert W. Turken, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Philpot v. Bouchelle, 411 So.2d 1341 (Fla. 1st DCA 1982); Mutual Employees Trade Mart v. Silverman, 178 So.2d 616 (Fla. 3d DCA 1965).


author: FERGUSON, Judge.

text:
    German SOLANO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1036.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Eunice Tall Martin, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

In habeas corpus proceeding where Governor’s warrant of rendition otherwise complies with the essential requirements of the Uniform Extradition Act, Section 941.01 et seq., Florida Statutes (1981), an identity of names raises the presumption that petitioner is the same person named in the rendition warrant; petitioner is then required to go forward with proof that he is not the person named in the warrant. State ex rel. Florio v. McCreary, 123 Fla. 9, 165 So. 904 (1936); Ford v. Moses, 606 P.2d 795 (Alaska 1980).

Order denying petition for writ is AFFIRMED.


text:
    Jack L. TERNER, Appellant, v. Freda RAND, as Personal Representative of the Estate of Ruth C. Terner, Deceased, Appellee.
    No. 81-1433.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Keith, Mack, Lewis & Allison and Gisela Cardonne and Edgar Lewis, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Theodore Klein and Linda Ann Wells, Miami, for appellee.
    Before DANIEL PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

Owner of a Totten Trust may revoke it by any decisive act of disaffirmance. In Re Totten, 179 N.Y. 112, 71 N.E. 748 (N.Y.Ct.App.1904). See also Litsey v. First Federal Savings & Loan Association of Tampa, 243 So.2d 239 (Fla.2d DCA 1971) (though Totten Trust may be revoked by any decisive act of disaffirmance, burden on one seeking to prove revocation by oral statements alone is exceedingly heavy). Where owner of trust delivered a document to her attorney which expressly revoked the “in-trust-for” accounts, beneficial interest of third-person was extinguished even though the document was not published in the owner’s lifetime. The passbook agreement between the owner and the bank specifying the method for changing title to the accounts is solely for the protection of the bank and is not a limitation upon the owner’s power to revoke a Totten Trust by any decisive act of disaffirmance. Jones v. First National Bank of Rome, 142 Ga.App. 18,234 S.E.2d 794 (1977). As to the remaining issues no reversible error is shown.

Affirmed.


text:
    John COCOLLA, Appellant, v. Carmelina COCOLLA, Appellee.
    No. 81-1486.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Adams, Ward, Hunter, Angones & Adams and John McClure, Miami, for appellant.
    Burton B. Loebl, North Miami Beach, for appellee.
    Before DANIEL PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Manuel J. RIVERA, Appellant, v. A. M. I. F., Inc., Appellee.
    No. 81-1675.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Grover, Ciment, Weinstein & Stauber and Stephen L. Malove, Miami Beach, for appellant.
    Harvey D. Rogers, Miami, for appellee.
    Before HUBBART, C. J. and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

On September 29,1978, the plaintiff commenced an action against three co-defendants, two of which were promptly served. Service of process was not accomplished on one defendant, A.M.I.F., Inc., until June 5, 1981. On July 9,1981, A.M.I.F., Inc. moved to dismiss for want of prosecution because of the two-and-one-half-year delay between filing of the complaint and service of process. The motion was granted, apparently in reliance upon Gonzalez v. Ryder Systems, Inc., 327 So.2d 826 (Fla. 3d DCA 1976). We need only observe that our holding in Gonzalez v. Ryder, supra, has been abrogated by amendment to Florida Rule of Civil Procedure 1.420(e), effective January 1, 1977, precluding the trial court from exercising its inherent power to dismiss a cause for failure to prosecute where there is activity of record within one year prior to the order of dismissal. See American Salvage and Jobbing Company v. Salomon, 367 So.2d 716 (Fla. 3d DCA 1979). In the present case, of course, the service of process upon A.M.I.F. constituted record activity. Since a year had not elapsed without activity, under the plain terms of the amended rule, the order of dismissal was error.

Reversed and remanded.

      . Even if the court had properly exercised its inherent power, we would be compelled to reverse for the trial court’s failure to find in the order that the plaintiff was willfully delaying prosecution. Greenwell v. Cuiffo, 415 So.2d 901 (Fla. 3d DCA) (1982).


text:
    RUSTIC VILLAGE, INC., a Florida corporation, and Steven Shere, Appellants, v. Elayne FRIEDMAN, Appellee.
    No. 81-1856.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Krongold & Bass and Paul H. Bass, Coral Gables, for appellants.
    Resniek, Rosenthal & Weiss and Leon J. Weiss, Miami, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, Tillman (Ret.) Associate Judge.

The defendant in an action brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Section 501.201, et seq., Florida Statutes (1979), appeals an order of the trial court denying a motion for attorney’s fees pursuant to Section 501.-2105 of the Act. We reverse upon a holding that where a plaintiff brings a claim under the Act, an attorney’s fee is to be allowed a prevailing defendant even though the trial judge holds that the cause of action is not one contemplated by the Act.

The complaint in this cause was brought expressly for relief under the Florida Deceptive and Unfair Trade Practices Act. Upon the defendant’s motion, the trial judge entered a judgment on the pleadings because the transactions described in the complaint were not covered by the provisions of the Act. Thereafter, the defendant moved for an attorney’s fee pursuant to Section 501.2105. [See n. 1.] The trial judge denied this motion.

The plaintiff, as appellee, attempts to support the order appealed on the basis that once the trial court had found the Act “inapplicable,” it could not then utilize the Act for the purpose of granting the prevailing defendant an attorney’s fee. It is apparent that this is not the case since the Act was applied in the action. It is simply that after being applied, it did not produce a remedy for this plaintiff. To some degree, such is the result in every case where a defendant prevails. The plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail. Cf. Falovitch v. Gunn and Gunn Construction Company, 348 So.2d 560 (Fla. 3d DCA 1977).

Reversed and remanded with directions to grant the defendant the fee provided by statute.

      . 501.2105 Attorney’s fees.— (1) In any civil ligitation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.


text:
    Raymond A. POLLOCK, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1938.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The order revoking probation and imposing sentence in this cause is affirmed save for the five (5) year terms of imprisonment imposed for grand larceny and unlawful possession of burglary tools in circuit court case no. 77-27207. The latter sentences are reversed as it is undisputed that the appellant Raymond A. Pollock was never placed on probation for these offenses. Harris v. State, 378 So.2d 37 (Fla. 3d DCA 1979). The evidence presented below was otherwise more than sufficient to satisfy the conscience of the court that the defendant was in violation of his probation as charged; both direct and hearsay testimony, conced-edly admissible here, were presented below and both formed the basis for the revocation in this case. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947).

The order revoking probation and the sentences imposed thereon are affirmed, save for the five (5) year terms of imprisonment imposed for grand larceny and unlawful possession of burglary tools in circuit court case no. 77-27207, which sentence is hereby reversed.

Affirmed in part; reversed in part.


author: BASKIN, Judge.

text:
    FISHERMAN’S PARADISE, INC., Appellant, v. Nancy GREENFIELD and Melvin Greenfield, Appellees.
    No. 81-1980.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.

      Underwood, Gillis, Karcher, Reinert & Valle and Carlos E. Casuso, and Thomas Trompeter, Miami, for appellant.
    Anderson & Moss, Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Appellee Melvin Greenfield took his ten-year-old boat to Fisherman’s Paradise for refurbishing. Fisherman’s Paradise subcontracted part of the work, including replacement of the refrigerator, to Endeavor Marine. During a boating trip, the refrigerator broke loose from its mounting and injured Mrs. Greenfield. The Greenfields sued both Fisherman’s Paradise and Endeavor Marine. They alleged that Fisherman’s Paradise was responsible for the negligent installation and included a claim predicated upon strict liability. They also charged Endeavor Marine with negligently installing the refrigerator. Upon motion, the trial court entered summary judgment against both Fisherman’s Paradise and Endeavor Marine, denying the motion for summary judgment filed by Fisherman’s Paradise. In this appeal, Fisherman’s Paradise contends it should not be held liable for negligent acts of Endeavor Marine, because it operated as an independent contractor. Finding that genuine issues of material fact remain to be decided, we reverse the summary judgment.

According to the general rule, an employer is not liable for the negligent acts of an independent contractor because he lacks control over the manner in which the work is performed. 2 Fla.Jur.2d, Agency and Employment § 109 (1977). One of the many exceptions to the general rule, however, occurs when the employer’s liability arises from the contractor’s negligent performance of inherently dangerous tasks. El Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977); Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So.2d 767 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 751 (Fla.1969). Furthermore, an employer may not escape liability for the creation of an inherently dangerous condition (at least on premises where public use is invited) unless it was not discoverable on reasonable inspection. Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967); Slavin v. Kay, 108 So.2d 462 (Fla.1959); Cardounel v. Shell Oil Co., 397 So.2d 328 (Fla. 3d DCA 1981), appeal dismissed, 407 So.2d 1102 (Fla.1981); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975). Non-delegable duties may result from contractual obligations. Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) [7 FLW 1179]; Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960); see also Easton v. Weir, 125 So.2d 115 (Fla. 2d DCA 1960), cert. denied, 129 So.2d 141 (Fla.1961) (landlord assumed duty to replace roof; employing an independent contractor did not absolve it of liability); 41 Am. Jur.2d, Independent Contractors § 37 (1968).

Whether Fisherman’s Paradise may be held liable for Endeavor’s negligent conduct under the foregoing principles is subject to a factual determination. We find no merit in the arguments presented in support of liability on other grounds. Arvida Corp. v. A. J. Industries, Inc., 370 So.2d 809 (Fla. 4th DCA 1979); see Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA), cert. denied, 352 So.2d 176 (Fla.1977); Restatement, Torts 2d § 402A (1965); 72 C.J.S. Products Liability § 8 (Supp.1975). We therefore reverse the summary judgment and remand for further proceedings.


text:
    Stanley SITZER, Appellant, v. Marcia SITZER, Appellee.
    No. 81-1982.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Charles E. Buker, III, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The trial court’s striking of the ex-wife’s first motion for modification of a final judgment to increase alimony and child support for failure to answer questions in discovery proceedings was no jurisdictional bar to a subsequent modification extending rehabilitative alimony entered on a new motion alleging further changes in circumstances where the wife appeared and disclosed all information originally sought. Appellant, citing Minor v. Minor, 240 So.2d 301 (Fla.1970) and Stockham v. Stockham, 168 So.2d 320 (Fla.1964), relies on the rule that a person initiating a judicial proceeding will not be allowed to carry on the litigation while at the same time invoking the Fifth Amendment privilege in order to shield herself from legitimate discovery procedures. However, as wife had already made disclosures, the rule did not apply.

When, as here, the parties have entered into an agreement for alimony and support in connection with a dissolution of marriage, the court retains jurisdiction to enter orders increasing, decreasing or confirming the amount of alimony or support as equity requires. § 61.14, Fla.Stat. (1979); see Pujals v. Pujals, 414 So.2d 228 (Fla.3d DCA 1982) (the trial court has inherent jurisdiction to consider a petition for modification or extension of rehabilitative alimony as long as it is filed within the period of rehabilitation provided by the final judgment).

Affirmed.


text:
    Henry GOLD and Shirley Gold, Appellants, v. B. D. W. CORPORATION and Sample Shoes, Inc., Appellees.
    No. 81-2100.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Weaver & Weaver and Thomas D. Lardin and Marlyn Leria, Fort Lauderdale, for appellants.
    Richard E. Hardwick, Coral Gables, Daniels & Hicks and Elizabeth K. Clarke, Lig-man, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Freundlich v. South Seas Operating Corp., 398 So.2d 490 (Fla. 3d DCA 1981); Cantens v. Jeff-Son, Inc., 381 So.2d 307 (Fla. 3d DCA 1980); see Woods v. City of Palatka, 63 So.2d 636 (Fla.1953), aff’d after remand, 78 So.2d 562 (Fla.1955); Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla. 3d DCA 1978).


text:
    Salameh K. HAWATMEH, Appellant, v. A & P BAKERY SUPPLY & EQUIPMENT COMPANY, a Florida corporation, Appellee.
    No. 81-2318.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Penzick & Parker, Miami, for appellant.
    Greenfield & Duval, North Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Walker v. Atlantic Coast Line R.R., 121 So.2d 713 (Fla. 1st DCA 1960).


text:
    Rolando YERO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2334.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Bennett H. Brummer, Public Defender, and Eric William Hendon, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Leeman v. State, 357 So.2d 703 (Fla.1978); Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    John Robert MASCI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2401.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Paul A. Lehrman, Tallahassee, Mitchell Denker, Key West, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that petitioner is entitled to a hearing on the allegations in his 3.850 motion, the denial of his motion is reversed. See Estrella v. State, 215 So.2d 489 (Fla. 3d DCA 1968); Kelly v. State, 175 So.2d 542 (Fla. 1st DCA 1965).

Remanded for further proceedings in accordance with above.

Reversed and remanded.


text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Laudelina BENITEZ, Appellee.
    No. 81-2430.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Luis A. Figueroa, Coral Gables, for appellant.
    Whitman, Wolfe & Gross and John W. Salmon, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Ellenwood v. Southern United Life Insurance Company, 373 So.2d 392 (Fla. 1st DCA 1979).


text:
    Lee V. CLEMENT, Appellant, v. CHEMICAL BANK, a corporation, Appellee.
    Nos. 81-2557, 82-1033.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Mora & Freeman and Richard L. Shiffrin, Miami, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Reversed. The record fails to reflect service of process upon appellant. We, therefore, reverse the trial court’s denial of appellant’s Motion to Set Aside Final Judgment entered following default. Outler v. Berman, 234 So.2d 724 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.540(b); accord Tucker v. Dianne Electric, Inc., 389 So.2d 683 (Fla. 5th DCA 1980); Saharuni v. Saharuni, 343 So .2d 674 (Fla. 2d DCA 1977).


text:
    Gabina LINARES, Appellant, v. Maria Guerra GONZALEZ, Industrial Fire & Casualty Insurance Company, Appellees.
    No. 81-2747.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Robert K. Estes, Coral Gables, for appellant.
    Goodhart & Rosner, Daniels & Hicks and Elizabeth K. Clarke, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160 (Fla. 3d DCA 1981); Kinney v. Allied Home Builders, Inc., 403 So.2d 440 (Fla. 2d DCA 1981); Lawyers Title Insurance Corp. v. Little River Bank & Trust Company, 228 So.2d 412 (Fla. 3d DCA 1969).


text:
    NORIEGA, CHOPP AND SCHATZ, P.A., Appellant, v. Elizabeth PENA and Florida Department of Labor and Employment Security, Unemployment Appeals Commission, Appellees.
    No. 82-18.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Noriega, Chopp & Schatz, Miami, for appellant.
    John P. Booth and John D. Maher, Tallahassee, for appellees.
    Before HENDRY, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from an order of the Florida Unemployment Appeals Commission granting appellee Elizabeth Pena unemployment compensation benefits pursuant to her claim against her employer, Noriega, Chopp and Schatz, P.A., for wrongfully discharging her from her job as receptionist.

Appellant contends that the Unemployment Appeals Commission erroneously denied its request to submit additional evidence after the Commission had entered its order in favor of the appellee, and that the notice of hearing of the Appeals Referee was insufficient in that it provided for less time than required by the Rules of the Department of Labor and Employment Security, Unemployment Appeals Commission.

We hold that there was no abuse of discretion shown in the Commission’s denial of the employer’s motion for rehearing for the purpose of introducing additional evidence. It appears from the record that the employer neither requested nor suggested that a continuance of the hearing be granted for the purpose of presenting additional evidence. The request for a rehearing was made after the Appeals Referee had issued a decision granting benefits to the employee. Accordingly, the Commission did not abuse its discretion in denying the employer’s request to be allowed to introduce additional evidence under the facts and circumstances as appear from the record. See Florida Department of Transportation v. J.W.G. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); section 443.151(4)(c), Florida Statutes (1981).

As to the notice of hearing complained of, we hold that no reversible error has been made to appear. Appellant’s failure to raise this issue before either the Appeals Referee or the Commission precludes further review. Scott v. Florida Department of Commerce, Division of Employment Security, 353 So.2d 1192 (Fla. 3d DCA 1977).

Affirmed.


text:
    Daniel F. HORRIGAN, Appellant, v. HIGH CLIMBER SERVICES, and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellee.
    No. 82-20.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Daniel F. Horrigan, in pro. per.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellees.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Appellant brings this appeal from an order of the Unemployment Appeals Commission which affirmed a decision of an Appeals Referee determining that appellant was disqualified for benefits for the week ended May 9th, 1981, and until he became reemployed and earned at least $1,785; that the record of the employer was relieved of charges; and that the claimant was not discharged by his employer but voluntarily left his employment without good cause attributable to the employer.

Our review of the record shows that the Appeals Referee’s findings were supported by substantial, competent evidence, therefore the Appeals Commission was correct in affirming the findings of the Appeals Referee. No reversible error having been demonstrated, the order appealed is affirmed.

Affirmed.


text:
    Muriel BOOTHMAN, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Employment Appeals Commission, and Greyhound Publications, Inc., Appellees.
    No. 82-238.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Muriel Boothman, in pro. per.
    James R. Parks, and Norman A. Blessing, Tallahassee, for appellees.
    Before HUBBART, C. J. and HENDRY a,nd FERGUSON, JJ.
   PER CURIAM.

Affirmed. Paschal v. Florida Department of Labor and Employment Security, 405 So.2d 1020 (Fla. 3d DCA 1981); Uni-weld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827 (Fla. 4th DCA 1973).


text:
    Jimmie Lee MELVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1098.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Jimmie Lee Melvin, in pro. per.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Roberto CRUZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1460.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Roberto Cruz, in pro. per.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for respondent.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Petitioner, Roberto Cruz, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See Cruz v. State, 409 So.2d 205 (Fla. 3d DCA 1982).


text:
    Michael W. TIDWELL, a minor, by and through his natural guardian and next friend, Winfred L. Tidwell, and Winfred L. Tidwell, individually, Appellant, v. The SOUTHLAND CORPORATION, Appellee.
    No. AI-121.
    District Court of Appeal of Florida, First District.
    July 27, 1982.
    James R. Green, of Levin, Warfield, Mid-dlebrooks, Mabie & Magie, P.A., Pensacola, for appellant.
    Robert D. Bell, of Fisher, Bell, Hahn, Winn & Schuster, P.A., Pensacola, for ap-pellee.
   McCORD, Judge.

The appellant, Michael W. Tidwell, a minor, sued The Southland Corporation for injuries he suffered when he tripped while jogging on a path on the Corporation’s property and fell into a ditch. The trial court granted a summary judgment in favor of the Southland Corporation.

We find that there are disputed issues of material fact or disputed inferences to be derived from those facts regarding the condition of the path itself and the sufficiency of the lighting for this night-time accident. Accordingly, the cause was not ripe for summary judgment [Fla.R.Civ.P. 1.510(c)], and the judgment must be reversed.

Reversed and remanded for further proceedings consistent with this opinion.

ERVIN and JOANOS, JJ., concur.