text:
    Kristina KUVIN, Appellant, v. Lawrence P. KUVIN, Appellee.
    No. 81-1461.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 6, 1982.
    Daniels & Hicks and Sam Daniels, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Magill, Reid, Kuvin & Lewis, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

Kristina Kuvin challenges two provisions contained in the Final Judgment of Dissolution of Marriage. First, she claims the court should have awarded her permanent rather than rehabilitative alimony. Next, she maintains the court erred in requiring the marital home to be sold; if the sale is affirmed, however, she contends child support payments should be increased to enable her to secure suitable shelter. We hold the trial court erred and reverse.

The parties were married in 1968 and have two children, who were eleven and four years old at the time of trial. The husband is a 47-year-old attorney, who earns $78,000 a year and receives additional sums for travel and car expenses. His net income is approximately $49,500. The wife, 36 years of age, worked part-time as a legal secretary during a year and a half of the marriage. After the birth of their second child, she did not work outside the home. Mr. Kuvin approved this decision. The evidence discloses that during their marriage the parties’ standard of living was based upon their ability to spend approximately $40,000 a year.

The parties own a home valued at approximately $213,000, which is encumbered with a $35,000 mortgage, and five acres in Colorado worth approximately $35,000, also mortgaged. In addition, Mrs. Kuvin brought to the marriage approximately $14,000 and an income of $200 a month derived from property owned by her family.

The Final Judgment of Dissolution of Marriage requires the husband to pay $950 a month for child support and $1,000 a month for a period of three years as rehabilitative alimony. It also requires sale of the marital home and division of the proceeds between the parties, with the wife receiving $20,000 from the husband’s share as lump-sum alimony. In addition, the Colorado property is to be sold and the proceeds divided.

Although Mr. Kuvin presented testimony establishing that Mrs. Kuvin is able to earn $250 a week as a legal secretary, Mrs. Ku-vin testified that she wishes to remain at home to care for her children.

The issue presented in this appeal is whether the wife may choose to remain at home as a full-time mother or must “rehabilitate herself” by working outside the home. In reaching our decision, we note that in order to work outside the home Mrs. Kuvin will be forced to spend a portion of her earnings for child care. We are also aware that Mr. Kuvin is financially able to support his former wife if she remains at home with their children. In McNaughton v. McNaughton, 332 So.2d 673, 675 (Fla.3d DCA 1976), cert. denied, 345 So.2d 424 (Fla.1977), the court addressed the same issue. Judge Tillman Pearson, speaking for the court, wrote:

We hold that the trial judge erred in determining that the facts of this case called for rehabilitative alimony. See Reback v. Reback, Fla.App.1974, 296 So.2d 541; and Schwartz v. Schwartz, Fla.App. 1974, 297 So.2d 117. This 43 year old mother has no income or training. She ought not be required to leave the home and the children in order to gain the means of support when the husband is well able to support his wife and children during the minority of the children. The wife will be 54 years old when the youngest child reaches 18. For the court to determine at this time that the wife can enter the labor market and support herself at that time is a prediction that need not be made at this time because the court may adjust alimony to changed conditions upon a proper petition. During the marriage, the husband maintained a good home and approved of the role of the wife. There is no reason that the dissolution should disrupt the home for the children so long as the husband is well able to maintain them in that home.

The rationale of the McNaughton decision derived from the husband’s ability to support his wife and minor children. We believe the same reasoning applies to the case before us. Mr. Kuvin maintained the home and approved his wife’s role as wife and mother. We see no reason to require Mrs. Kuvin to leave the home and children solely to gain support when Mr. Kuvin is well able to support Mrs. Kuvin and their children while the children are minors. Should Mrs. Kuvin decide to return to the labor market, the court may adjust the alimony upon application. See also Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977); Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 514 (Fla.1978).

We disagree with the husband’s contention that the legislature intended to apply a single standard permitting only rehabilitative alimony for all spouses. Section 61.05, Florida Statutes (1979) states, in part: “The court may consider any other factor necessary to do equity and justice between the parties.” See Bender v. Bender, 363 So.2d 844 (Fla. 1st DCA 1978). It is obvious that the legislature has never enacted laws requiring mothers of young children to work outside the home, either during marriage or upon its dissolution, when a husband is able to support his family. Mr. Kuvin approved his wife’s decision to fulfill her obligations at home during the marriage, and he is able to continue to provide for his family. We therefore see no reason to order Mrs. Kuvin to seek outside employment. Accordingly, we reverse the award of rehabilitative alimony and' direct the court to award permanent alimony.

We hold, in addition, that the trial court should have awarded Mrs. Kuvin exclusive possession of the marital home until the children have attained their majority. Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981); McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1978); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975). At that time, and upon sale of the home, the husband should be reimbursed for his contribution to the mortgage and repairs. Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980); Rutkin v. Rutkin, 345 So.2d 400 (Fla. 3d DCA 1977). If, however, it becomes necessary to sell the house while the children are still minors, the child support award should be increased to provide adequate funds to enable the wife to find a comparable residence for herself and the children.

For these reasons, we remand the cause for reevaluation of the alimony award in light of our determination that the wife receive permanent alimony and sole possession of the marital residence during the children’s minority.

Reversed and remanded with directions.


source: Caselaw Access Project

author: LETTS, Chief Judge.

license: Public Domain

text:
    Gary Robin EATON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2272.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied May 5, 1982.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This case needs no recitation of the facts. It is yet another instance where the trial judge failed to instruct on maximum and minimum sentences. It, therefore, must be reversed on the authority of our Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980).

Tascano, when written, expounded for four paragraphs about how its potential impact would necessitate that it be prospective only. Accordingly, one would assume that since the trial of the case at bar occurred before Tascano was published, Tas-cano would not here apply. Not so, however. See Borden v. State, 402 So.2d 1176 (Fla.1981) where the trial also occurred pri- or to Tascano.

There is overwhelming evidence of the defendant’s guilt in the case now before us. Despite repeated certified questions from all the District Courts, crying out in anguish a form of: “Say it ain’t so, Joe,” the Supreme Court has backed up its initial Tascano ruling with innumerable other summary dispositions which have finally nailed the coffin shut.

REVERSED AND REMANDED.

HERSEY and HURLEY, JJ., concur.

      . See Murray v. State, 403 So.2d 417 (Fla.1981) and eighteen other cases not yet to be found in the Southern Reporter, but cited in Volume 6, No. 47 p. 641, Florida Law Weekly December 4th, 1981.


author: DOWNEY, Judge.

text:
    Russell KIRKPATRICK and Gary Lee Kirkpatrick, Appellants, v. STATE of Florida, Appellee. Cecil E. WROTEN, Appellant, v. STATE of Florida, Appellee. Joel JENISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1446, 80-1576 and 80-2154.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied May 5, 1982.

      Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for appellant-Russell Kirkpatrick.
    David F. Holmes and Alan Jay Braver-man of Alan J. Braverman, P. A., Fort Lauderdale, for appellant-Gary Kirkpatrick, and Arnold T. Blostein, Fort Lauder-dale, for appellant-Cecil Wroten.
    Nelson E. Bailey of Bailey & Jorday, P. A., West Palm Beach, for appellant-Joel Jenison.
    Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

The appellants, Gary Kirkpatrick, Russell Kirkpatrick, Cecil Wroten, and Joel Jenison, were charged by information with various violations of the drug abuse laws of Florida.

Gary Kirkpatrick pleaded nolo contendere to Count IV of the information, which charged a conspiracy to violate the drug abuse laws by possessing with intent to sell or deliver and to bring into the State of Florida in excess of 28 grams of cocaine and 200,000 methaqualone pills.

Russell Kirkpatrick pleaded nolo conten-dere to Counts I and VII, importation of methaqualone, and possession of hashish, respectively. Cecil Wroten pleaded nolo to Count I.

Joel Jenison went to trial on Count I, importation of methaqualone; Count II, possession of methaqualone with intent to sell or deliver it; and Count IV, the conspiracy described above. The jury returned a verdict of not guilty as to Counts I and II and conspiracy to possess and import meth-aqualone pills, but guilty as to the conspiracy to possess and import in excess of 28 grams of cocaine.

A lengthy recitation of the facts is not indicated. Suffice it to say that, pursuant to Chapter 394, Florida Statutes (Supp. 1980), the police obtained a warrant to tap the telephone of Gary Kirkpatrick. As a result of monitoring telephone calls to and from Gary Kirkpatrick’s residence, the police obtained search warrants for the residence of Gary and Russell Kirkpatrick. Execution of the warrants led to the discovery of a large quantity of drugs, which gave rise to the charges filed herein.

On appeal the parties cite the court to numerous alleged errors committed during the progress of the case below. We have carefully considered each of those contentions and found most of them to be without merit. Three of the appellate points, however, require discussion.

The trial court sentenced Gary Kirkpatrick to nine and one-half years in prison but suspended seven years and placed him on probation for seven years. One of the conditions of his probation required him to waive his Fourth Amendment rights. Such a condition is improper and should be stricken. Grubbs v. State, 373 So.2d 905 (Fla.1979).

The next point raised that we deem worthy of comment is the assertion that the trial court erred in denying the motion of Gary Kirkpatrick for discharge under the speedy trial rule vis-a-vis the misdemeanor aspect of the conspiracy count. As indicated earlier, that count charged a conspiracy to possess with intent to sell and deliver and bring into the State of Florida in excess of 28 grams of cocaine and in excess of 200,000 methaqualone pills. The first objective of the conspiracy is a felony, the second is a misdemeanor. As to the misdemeanor aspect of the conspiracy, it is contended that it was incumbent upon the State to bring those defendants to trial within 90 days, Florida Rule of Criminal Procedure 3.191(a)(1), and since the State failed to do so those defendants were entitled to discharge.

We hold that, where a conspiracy has as its objective several acts which constitute both felonies and misdemeanors, the conspiracy charge need not be tried within 90 days (the period within which a defendant must be tried on a misdemeanor charge or, upon motion, discharged from custody on that charge); but if a defendant is not tried within that time the acts that constitute misdemeanors cannot be relied upon to prove the conspiracy. Where a conspiracy has as its object the commission of several different crimes, proof of the conspiracy to commit any single one of the crimes charged is sufficient. United States v. Mack, 112 F.2d 290 (2d Cir. 1940). Appellant’s plea of nolo contendere to Count IV cannot be affected by the fact that 90 days had passed since appellants were taken into custody because one of the objects of the conspiracy was the commission of a felony, i.e., trafficking in drugs by possessing with intent to sell and deliver and import in excess of 28 grams of cocaine in violation of Section 893.13(l)(a), Florida Statutes (Supp. 1980). We analogize the rule set forth in Mack, supra, and conclude that whether the time for trial as to the misdemeanor aspect of the conspiracy had expired is of no import because the felony aspect thereof was still viable. Also supporting our conclusion is the rule that:

[0]n conviction of a charge of conspiracy to commit two or more offenses for which different penalties are provided, only one sentence is to be imposed, and that should be based on the penalty prescribed for conviction of conspiracy to commit the higher of the crimes so stated. Corbo v. State, 347 So.2d 133, 135 (Fla. 3d DCA 1977)

Thus, in the present case the circuit court, pursuant to Gary Kirkpatrick’s nolo conten-dere plea to the offense of conspiracy to commit a felony, had a sufficient basis to support acceptance of the plea without relying in any way upon the misdemeanor aspect of Count IV.

The final appellate point warranting discussion is Jenison’s contention that the trial court erred in instructing the jury as to the effect his alleged status as a confidential informer should have on the three offenses with which he was charged.

The State’s evidence showed that, as a result of a conspiracy, a plane was flown to Colombia by Gary Kirkpatrick and Wroten to obtain a large quantity of cocaine. However, instead of picking up cocaine, they returned with the methaqualone pills.

Jenison maintained throughout the proceedings in the circuit court that, while he participated with the other defendants in a conspiracy to import cocaine from Colombia, he did so only as an informer working under the supervision of an appropriate law enforcement agency. Thus, it was Jenison’s contention that he was not guilty of the commission of any crime. There was evidence adduced in support of that contention and the judge agreed to submit that issue to the jury. During closing arguments Jen-ison’s lawyer and the prosecutor both made considerable reference to the “informer exception” defense to the charges against Jen-ison and the jury was apprised that the court would instruct them on that defense. In that regard the court instructed the jury as follows:

Now, there are some exceptions to the law making it a crime to either import or possess controlled substances and those exceptions are provided by the law and this particular instance, those exceptions apply to certain persons and the exceptions are that — that is it doesn’t apply to those persons, officers or employees of State, Federal or local governments, acting in their official capacity only or informers acting under their — that is under officers of State, Federal or local Government, acting in their official capacity, under their jurisdiction.
In the absence of any evidence tending to show that the defendant was within one of these exceptions, you cannot find him not guilty on the grounds that his acts may have come within an exception. However, if there is any evidence tending to show that the defendant was, in fact within one of those exceptions, then the burden rests upon the state to prove, beyond a reasonable doubt, that the defendant was not within that exception. (Emphasis added.)

Jenison objected to this instruction and advised the court that it had failed to include the conspiracy count in the “informer exception” and he requested the jury be rein-structed properly. The court refused the request. Later the jury requested further instructions on several points, and the court agreed to reinstruct the jury on those points. The reinstruction included the charge regarding the “informer exception” as set forth above, again omitting the conspiracy count. In addition, the instruction as delivered was extremely confusing. The jury found Jenison not guilty on Count I, importing methaqualone; not guilty on Count II, possessing of methaqualone; not guilty of conspiracy to import or possess methaqualone; but guilty of conspiracy to traffic in cocaine. Keeping in mind Jeni-son’s admission that he took part in the cocaine conspiracy and his contention that he did so solely as an informer, we recognize that the omission of the conspiracy count from the instruction on the informer exception was crucial. The trial court tailored the instruction to fit the importation and possession counts but omitted the conspiracy count. Had the jury found Jenison guilty on Counts I and II and not guilty on the conspiracy count, we could readily hold the omission was harmless error. But under the circumstances, the error in failing to properly instruct the jury in this regard appears to us to be prejudicial and thus reversible.

Accordingly, the judgments and sentences appealed from by appellants Russell Kirkpatrick and Cecil Wroten are affirmed. The judgment and sentence appealed from by Gary Kirkpatrick is affirmed in all respects except that the condition of probation requiring waiver of Kirkpatrick’s Fourth Amendment rights is stricken. The judgment and sentence appealed from by Jenison is reversed and the cause is remanded for a new trial as to him.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

BERANEK and DELL, JJ., concur.


author: COWART, Judge.

text:
    Martha J. CLEMMONS, as Personal Representative of the Estate of Jerry Clemmons, deceased, and Martha J. Clemmons, individually, Appellant, v. AMERICAN STATES INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 80-1268.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      Michael Maher and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, P. A., Orlando, for appellant.
    E. Clay Parker of Parker, Johnson, Owen & McGuire, Orlando, for appellee.
   COWART, Judge.

The question in this case is whether or not injuries causing death, inflicted by an insured acting in necessary self-defense, are “intentional injuries” within the meaning of provisions of a liability policy that include under coverage acts committed by the insured not intended to cause serious bodily injury, but which exclude bodily injury “intended from the standpoint of the insured.”

The facts are narrated most favorably to appellant. Leeper and Patten were target shooting at a landfill. Leeper was shooting a .45 caliber automatic pistol and Patten was shooting a .22 caliber rifle. Leeper had left a shotgun, unloaded, in his automobile parked nearby. Clemmons and Willis, strangers, approached. Willis took the rifle from Patten and started walking away with it. Leeper asked Willis to bring the rifle back. Willis turned around and raised the rifle while walking towards Leeper. Leeper shot Willis with the pistol. Clemmons then grabbed the shotgun and commenced to enter Leeper’s automobile where Leeper knew there were shells for the shotgun. Leeper then shot Clemmons twice; the second shot fatally wounded Clemmons.

The personal representative of Clem-mons’ estate filed a wrongful death action against Leeper and appellee American States Insurance Company, which company had a liability policy covering Leeper. Ap-pellee American States, although admitting the policy included within its coverage acts committed by the insured not intended to cause serious bodily injury, pleaded as an affirmative defense provisions in the policy that excluded coverage as to bodily injury either expected or intended from the standpoint of the insured. The insurance coverage issue was severed for a non-jury trial. Leeper testified that he believed the shotgun was loaded and that when he shot Clemmons his intent was not to kill Clem-mons, but was merely to keep Clemmons from shooting him with the shotgun. The court directed a verdict for American States, holding that under the facts, as a matter of law, Clemmons’ death was caused by Leeper’s intentional act within the meaning of the policy exclusion.

Rather than weighing the evidence to reach a decision, in which process the trial judge trying the facts without a jury could have considered Leeper’s credibility and have accepted or rejected evidence, the decision below was in the form of a directed verdict and it is for that reason that the facts and all reasonable inferences therefrom have been accepted as those most favorable to appellant. However, that matter is of little importance here. The facts as stated above are not really controverted because they were developed only in appellant’s case; for whatever reason, it is here assumed that Leeper acted in necessary self-defense. The remaining question is one of law.

Apparently, cases considering similar problems have raised questions as to whether the insured’s intention had to relate to the insured’s act, or to the immediate effect or result of that act, or to an ultimate purpose or objective the insured intended to accomplish by the act. An insured can intend to do an act but not intend the immediate result; intend both act and immediate result but not an ultimate effect; or intend to do the act for one specific effect or purpose and the act result in consequences other than those intended. Of course, an insured can do and intend his act and intend to accomplish the act’s ultimate purpose and merely regret the immediate result that is necessary in order for the act to achieve its intended ultimate purpose. We shall attempt to explain.

Florida courts have held that, where the insured did not intend to cause harm to the person injured, such exclusion in insurance policies did not apply, even though the acts were intentional and the injuries reasonably foreseeable to result from the act. In Gulf Life Insurance Company v. Nash, 97 So.2d 4 (Fla.1957), although the insured shot himself while playing Russian roulette, it was held that the death did not result from an intentional act because the insured did not intend to injure himself. In Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla. 2d DCA 1974), McDowell intended to shoot one person, but accidently (unintentionally) shot Thomas, a bystander. The court held that Thomas’ injuries were not intentionally inflicted and that the insurance exclusion did not apply. In Phoenix Insurance Company v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974), the insured, attempting to disperse a crowd with his automobile, accidently (unintentionally) injured a member of the crowd and it was held that the insurance exclusion did not apply. In Cloud v. Shelby Mutual Insurance Company, 248 So.2d 217 (Fla. 3d DCA 1971), Cloud unintentionally caused injuries to the driver of another automobile, which other automobile Cloud was intentionally pushing out of his way with his car. The court held the exclusion did not apply because “coverage is not excluded as a matter of law where there was an ‘intentional act’ but not an ‘intentionally caused’ injury.” See also Darragh v. Brock, 366 So.2d 801 (Fla. 1st DCA 1979). In Colonial Life and Accident Insurance Co. v. Cooper, 378 So.2d 806 (Fla. 3d DCA 1979), the insured jumped off of a building intending to injure himself and collect damages from the building’s owner. He died instead. The court held his death was intentional although he did not intend the result saying “when an insured intends to cause an injury, the result of his action does not constitute an accident even if the damage is more severe than he wished or anticipated.” Similarly, in Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977), the court rejected the argument that, since the damage to the victim’s eye was greater than intended by the insured when he struck the victim, the eye injury was not intentional. The court examined all preceding cases and stated “insurance policies covering liability for an ‘accident’ apply to any bodily injury or property damage inflicted by the insured on a third party where the insured does not intend to cause any harm to the third party; this result obtains even though damages are caused by the insured’s intentional acts and were reasonably foreseeable by the insured.... but never has coverage been found under such policies where the insured’s act was deliberately designed to cause harm to the injured party.” Id. at 650-51; see Annot., 2 A.L.R.3d 1238 (1965) (“Liability Insurance: Specific Exclusion of Liability for Injury Intentionally Caused by Insured”).

Appellant cites two California cases holding that injuries inflicted in self-defense are considered as being unintentional. These cases disregarded the express wording of the insurance policies and reasoned that, since usually the intentional infliction of injuries on another is wrongful, the purpose of the exclusion is to prevent the insured from “profiting from his own wrongdoing” and that, since acts committed in self-defense are not wrongful because they are legal, the exclusion does not apply. This is fine circular reasoning but it is fallacious. While generally it is true that the intentional infliction of injuries on another is wrongful, that rule is not absolute. Many times it is not wrongful in the legal sense, such as in self-defense or when a guard is preventing a convict from escaping.

In Etcher v. Blitch, 381 So.2d 1119 (Fla. 1st DCA 1979), after an altercation between two drivers, Etcher, on foot, attacked Blitch’s vehicle with Blitch in it. Blitch pointed a revolver at Etcher intending, he said, to frighten Etcher by shooting out the window glass. Nevertheless the court held that Blitch’s act in shooting Etcher “was in law intentional, not negligent.” In Draffen v. Allstate Insurance Co., 407 So.2d 1063 (Fla. 2d DCA 1981), as in this case, the trial court in granting a directed verdict in favor of an insurer held, as a matter of law, that the bodily injury was intended within the meaning of the exact same insurance policy exclusion as is involved in this case. Draf-fen, an insured robber being pursued in the dark, shot six times in the direction of his pursuers; three of the six shots hit one plursuer named Atherton. Atherton, as plaintiff, aware that insurance policies exclude intentional acts, alleged that Draffen negligently and carelessly caused his gun to fire, striking Atherton. Although conceding, as an inference in favor of the appellant there required, that because it was dark Draffen might not have intended the immediate and specific result of the resulting gunshot wounds to Atherton, the trial judge held it was clear that Draffen “most certainly did intend to kill or injure one or more of his pursuers ....” 407 So.2d at 1065. The directed verdict in favor of the insurer was upheld.

Although at first glance it would appear that E'raffen, a wrongdoer directing deadly force towards Atherton to avoid apprehension, and Leeper, an innocent acting in good faith and reluctantly directing deadly force toward the aggressor Clem-mons only in necessary and justified self-defense, are at the extremes of legal comparison, nevertheless, insofar as the issue in this case is concerned, their cases are very analogous. Each did the same act: intentionally discharging a firearm while intentionally aiming it toward another human being. Each caused the same obviously foreseeable immediate result: the projectile intentionally sent forth struck the human to which it was intentionally directed and, as was to be expected, inflicted serious bodily injuries. Each did his act for a specific ultimate purpose or motive: Draffen to avoid being caught, Leeper to avoid harm to himself. Each can fairly and charitably be assumed to have preferred to accomplish his ultimate purpose (the avoidance of capture or the avoidance of harm to himself) without the necessity of causing injury to another. Each found he was in a dilemma and had to make a choice between inflicting injury on another or not achieving his ultimate desire. Each made a decision and decided to inflict injury rather than suffer the alternative presented. Without regard to the difference between Leeper and Draffen, morally and under criminal law concepts, when each intentionally caused bodily injuries to another by intentionally shooting him, each acted within their insurance policy exclusion, notwithstanding that the ultimate purpose of each was to accomplish a distant objective or goal quite beyond and detached from the intended act of shooting and the immediate obvious result of thereby inflicting serious bodily harm.

Accordingly, as in Draffen, the final judgment based upon a directed verdict in favor of American States is

AFFIRMED.

SHARP, J., concurs.

DAUKSCH, C. J., concurs in conclusion only.

      . The trial judge, at the close of all the evidence in this non-jury trial, “directed a verdict” in favor of American States, rather than weighing the evidence and entering final judgment. If this court were reviewing a final judgment entered on the weight of the evidence against Clemmons, the evidence would be construed against Clemmons as appellant. However, where a trial judge trying a case non-jury involuntarily dismisses the cause and enters judgment for the adverse party because of legal insufficiency of the evidence, Fla.R.Civ.P. 1.420(b), on appeal the evidence must be construed in favor of the party dismissed. Tillman v. Baskin, 260 So.2d 509 (Fla.1972).

      . Mullen v. Glens Falls Insurance Co., 73 Cal.App.3d 163, 140 Cal.Rptr. 605 (5th Dist. 1977); Walters v. American Insurance Co., 185 Cal.App.2d 776, 8 Cal.Rptr. 665 (1st Dist. 1960). See also Brasseaux v. Girouard, 269 So.2d 590 (La.App. 3d Cir. 1972), app. denied, 271 So.2d 262 (La.1973) (relying on Walters).


author: MILLS, Judge.

text:
    PORT CARRIERS, INC., Appellant, v. Harry SIMMONS and Florida Department of Labor and Employment Security, Unemployment Appeals Commission, Appellees.
    No. AE-174.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Gary A. Bubb of Toole, Taylor, Moseley & Joyner, Jacksonville, for appellant.
    James R. Parks, Gen. Counsel, and Norman A. Blessing, Tallahassee, for appellee Unemployment Appeals Com’n.
   MILLS, Judge.

Port Carriers, Inc. (employer) appeals an order of the Unemployment Appeals Commission which affirmed an Appeals Referee’s ruling that the employer was not an interested party on the issue of Simmons’ (claimant’s) availability for work. We reverse.

The claimant is a union longshoreman in Jacksonville. The employer is a warehouse operator at the Port of Jacksonville. The employer’s labor needs are satisfied through the union on a day to day basis. Before 5 p. m., the employer notifies the union of its labor needs for the next day. The union sends the men over from the union hall the next morning. This process is repeated daily. The union has a seniority system for assigning the available work.

The claimant sought unemployment compensation. A claims adjudicator ruled that the claimant was released due to lack of work. The employer, responsible for 15% of the claimant’s employment for the previous year, appealed. The appeals referee remanded for a determination on the issue of whether the claimant was unemployed. The adjudicator found that “we cannot determine that [claimant] was not unemployed.” The employer’s record was charged with a pro rata share of the claimant’s benefits. The employer again appealed. The referee entered an amended order in the first appeal, finding that the claimant was discharged, but not for misconduct, and was entitled to benefits. Under a separate docket number he dismissed the second appeal, holding that the employer was not an interested party on the issue of availability or actual unemployment. The employer appealed this decision to the full Commission. The Commission, noting that no appeal had been filed from the order remanding and the amended order under that docket number, found the dismissal of the second appeal to be in accordance with law and affirmed. The employer appeals to this Court.

The employer argues that the claimant has not made himself available for work, since he seeks employment only through his union. See Griffin v. Parrish Construction & Door Service, 409 So.2d 62 (Fla. 1st DCA 1982).

The Commission based its decision upon its reading of §§ 443.101 & 443.151 Fla. Stat. (1981) (the chapter was reorganized by the 1980 legislature; for clarity only the current section numbers will be used in this opinion), coupled with Rule 38B-2.14 F.A.C.

Section 443.091 Fla.Stat. (1981) establishes availability for work as a condition for benefit eligibility. Section 443.-151(3)(a) requires notice of claim determination for all chargeable employers. The appellant is a chargeable employer, and it received notice of the determination. Section 443.151(3)(c) calls for notice of redeter-minations in the same manner as initial determinations. This section, however, is complicated by § 443.151(3)(d), allowing the Division of Employment Security of the Department of Labor and Employment Security to establish rules specifying which employers are entitled to notice of redeter-minations under § 443.101. The division did this in Rule 38B-2.14 F.A.C. The right to appeal is given to parties entitled to notice, § 443.151(4)(b). The Commission argues that § 443.151(3)(d) Fla.Stat. (1981) cuts off the right to appeal § 443.091 issues. We disagree. By its plain language § 443.-151(3)(d) applies only to § 443.101 issues. The more general provisions of § 443.-151(3)(c) apply in redeterminations based on other sections. The employer is raising a § 443.091 issue, so § 443.151(3)(d) has no application, and therefore neither would Rule 38B-2.14. Applying § 443.151(3)(c), the Unemployment Compensation Law gives the employer a right to appeal § 443.-091 issues.

We note that an employer’s contribution rate is based on its experience rating, a measure of the benefits paid to its (ex)employees. Thus, the employer’s substantial interests are affected by the determination of an employee’s right to benefits. Section 120.57 Fla.Stat. (1981) applies to any such determination. No hearing has been given to the employer on the issue of availability. The Administrative Procedure Act, as well as due process, requires that the employer receive a hearing.

We note that the issue of availability has been litigated before the Commission and the courts in Auchter Co. v. Florida Department of Commerce, 304 So.2d 487 (Fla. 1st DCA 1974), aff’d. sub nom.; Adams v. Auchter Co., 339 So.2d 623 (Fla.1976), and in National Airlines v. Division of Employment Security, 379 So.2d 1033 (Fla. 3d DCA 1980).

The parties have argued the merits of the availability issue to us, but we decline to rule on them at this time. The appropriate time for an appellate court to rule on these issues is after an evidentiary proceeding culminating in a final order. No such proceeding was held in this case.

The order below is reversed and remanded for further proceedings in accordance with this opinion.

LARRY G. SMITH and SHAW, JJ„ concur.


author: PER CURIAM. SHAW, Judge,

text:
    Clyde Bernard LUNFORD, Appellant, v. STATE of Florida, Appellee. Robert Anthony GRAHAM, Appellant, v. STATE of Florida, Appellee. John Kelly ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    Nos. AG-361, AG-362 and AG-364.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Rehearing Denied April 30, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981).

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

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The appellants successfully attacked illegal sentences and upon being resentenced were given what I view as more severe sentences. It is my opinion that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) is applicable. See dissent in Adams v. State, 414 So.2d 1079 (Fla. 1st DCA 1982).


author: PER CURIAM.

text:
    Pedro ARREDONDO, Appellant, v. JACKSON MEMORIAL HOSPITAL and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellee.
    No. 81-2172.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied May 5, 1982.

      Pedro Arredondo, in pro. per.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal from an order of the Unemployment Appeals Commission affirming the decision of the Appeals Referee. The Referee’s decision was supported by the following findings of fact and conclusions of law:

“FINDINGS OF FACT: Claimant became employed by the operator of a hospital as a computer operator in February, 1981. His assigned hours of work were from 12 midnight to 12 noon Thursday through Sunday. During the course of the claimant’s employment the claimant found that he had difficulty sleeping during the day. The claimant also found that he had difficulty sleeping during the day when he worked the same shift for approximately one year before he took this employment. The claimant was also dissatisfied with the employer’s pay differential for the shift and for these reasons he notified his employer that unless both conditions were corrected that he would leave his employment. When the conditions were not corrected the claimant decided to leave his employment on April 19, 1981, and he tendered his resignation at that time.
CONCLUSIONS OF LAW: The Unemployment Compensation Law provides that an individual shall be disqualified for benefits if he has voluntarily left his employment without good cause attributable to his employer.
The record and evidence of the instant case clearly show that the claimant voluntarily left his employment on April 19, 1981. It has further been shown that he took such action because he was dissatisfied with his working hours and the pay differential. To this extent, the claimant testified that he left his employment for a valid medical reason and submitted some medical documentation to that extent. The law does provide that an individual may leave employment with good cause if there is a bona fide medical condition demanding that that individual become separated from the employment. In the instant case, however, the claimant demonstrated that he worked on the third shift for at least a year and during which time he earned the wage credits of his claim and suffered from the same basic effects. Although the claimant clearly had some difficulty in working at nights because he could not adjust to the sleep routine and had migraine headaches it has not been shown that he was furnished with a compelling and necessitous reason to leave his employment based upon the evidence presented. The claimant’s letter of resignation clearly states that he was dissatisfied with the shift as a whole and the pay differential which was apparently the reason that he left his employment at the time. Based on the foregoing, it is concluded that the claimant voluntarily left his employment without good cause attributable to his employer, within the meaning of the law.”

There is competent substantial evidence in the record and a reasonable basis in law to support the findings and conclusions of the Appeals Referee, adopted by the Commission, that claimant voluntarily left his employment without good cause attributable to his employer, within the meaning of Section 443.101(1), Florida Statutes. Therefore we must reject appellant’s contentions and affirm the order appealed.

Affirmed.


author: SHAW, Judge.

text:
    YARNALL WAREHOUSE AND HOME INSURANCE COMPANY, Appellants, v. Donald T. JONES, Appellee.
    No. AE-170.
    District Court of Appeal of Florida, First District.
    April 7, 1982.
    Rehearing Denied May 4, 1982.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   SHAW, Judge.

The employer/carrier appeals from an order of the deputy commissioner which found that the employer/carrier, though aware that the claimant was admitted to the hospital on an emergency basis, failed to provide needed medical treatment. The deputy ordered the employer/carrier to pay temporary total disability benefits for the period of hospitalization, interest, the bill of Dr. Hatt, and that portion of the hospital bill incurred before Dr. Miller was advised that the hospitalization was unauthorized.

The deputy’s finding that the claimant was hospitalized on an emergency basis is supported by competent substantial evidence. The point on appeal is accordingly AFFIRMED.

The claimant, on cross-appeal, challenges that portion of the order which denied payment of the hospital bill subsequent to the time Dr. Miller was put on notice that there was no authorization for the hospitalization. Claimant’s argument has merit. Liability for payment of the hospital bill resulted from the carrier’s failure to provide medical treatment after learning of the claimant’s need for such treatment. The carrier cannot terminate its liability without making an offer for alternative medical treatment. The carrier’s action was tantamount to deauthorization of a treating physician. See Pinellas County School Board v. Fly, 393 So.2d 610 (Fla. 1st DCA 1981), wherein this Court held that an authorized treating physician may be deau-thorized by the employer/carrier if alternative medical treatment is offered. This principle is not limited to a treating physician; it is equally applicable to all medical service providers. The judge erred in concluding that the carrier’s liability for the claimant’s hospital bill terminated when Dr. Miller was put on notice that the hospital was unauthorized to treat the claimant.

As to the issue raised on cross-appeal, the order is REVERSED and REMANDED with directions that the deputy commissioner enter an order directing the employer/carrier to pay the hospital bill for the claimant’s full period of confinement.

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


text:
    Ronnie VAN FRIPP, Appellant, v. STATE of Florida, Appellee.
    No. 81-660.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Philip G. Butler, Jr., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order revoking defendant’s probation together with the trial court’s decision not to disqualify itself after the defendant had suggested that the trial judge was a material witness. The two affidavits which accompanied defendant’s motion for disqualification failed to demonstrate conclusively that the trial judge possessed relevant information “going to some fact affecting the merits of the cause and about which no other witness might testify.” Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934). See also State ex rel. Slora v. Wessel, 403 So.2d 496 (Fla. 4th DCA 1981) (Hurley, J., concurring specially).

In addition, we find no abuse of discretion in the trial court’s denial of defendant’s motion to set aside his plea and conviction. Accordingly, both orders are AFFIRMED.

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


text:
    John BACK a/k/a John Irvin Back, Appellant, v. STATE of Florida, Appellee.
    No. 81-1009.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied May 5, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, having failed to. do so at trial, seeks to raise for the first time on appeal the issue of the lack of evidence of intent to commit theft. See Fla.R.Crim.P. 3.380(b); Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980); De La Cova v. State, 355 So.2d 1227 (Fla. 3d DCA 1978). We affirm.

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Patricia L. JUNOD and PGA Realty, Inc., Appellants, v. Frank R. MASIELLO, Jr., Giorgio Paramithiotti, MPS Development Corporation, and PGF Enterprises, Inc., Appellees.
    No. 81-1367.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Charles C. Chillingworth and Roxanne Beth Axelrod, Palm Beach, for appellants.
    L. M. Taylor and Steven J. Greenwald, North Palm Beach, for appellees.
   LETTS, Chief Judge.

This is a suit about a real estate commission. The jury awarded the broker a $32,-000 commission against two defendant corporations, which verdict is not in issue before us, but the trial judge granted a directed verdict in favor of two other individual defendants which we believe was in error and which we now reverse.

There is competent substantial evidence in the record, although contested, that at least one of the two individual defendants promised to pay the broker a commission without disclosing that he, or they, were agents and not the principal. There is also a written contract, albeit never signed by them, that she was to receive a commission because of her efforts on behalf of these two individual defendants.

There is no way this was not a jury question. This cause is reversed and remanded for a new trial on the question of whether one or both of these individual-defendants obligated themselves to pay the broker and on the question of whether in dealing with the broker they failed to disclose their principal and thus became personally liable. Collins v. Aetna Ins. Co., 103 Fla. 848, 138 So. 369 (Fla.1931). We specifically do not disturb the jury verdict rendered against the corporate defendants and seek only a determination of whether the two individual defendants are also liable under that same verdict.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., con-ir-

      . At oral argument the agents argued that any nondisclosure would have to continue up until the actual signing of a contract, but the Aetna decision seems to hold that an agent who merely “deals” with a second party may be liable after discovery of the principal.


text:
    Jeffery Bernard LATSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1429.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied May 5, 1982.
    Richard L. Jorandby, Public Defender, Margaret Good, Asst. Public Defender, and Barbara A. Heyer, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm on the authority of Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    Mellie D. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-709.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.

      James B. Gibson, Public Defender, James R. Wulchak, Asst. Public Defender, and Michael B. Jones, Certified Legal Intern, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant’s only meritorious issue on appeal is her argument that the trial court erred in imposing indeterminate sentences for appellant’s three misdemeanor convictions. We reverse.

The power to prescribe the penalty to be imposed for commission of a crime rests with the legislature, not with the courts. Dorminey v. State, 314 So.2d 134 (Fla.1975); Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943). Consequently, a defendant’s sentence must be authorized by statute; without a statute allowing such punishment, the sentence is unauthorized. See, e.g., Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974) (sentence “at hard labor” was unauthorized after repeal of § 922.05(2)).

Section 921.18, Florida Statutes (1979), authorizing indeterminate sentences, is limited in application to noncapital felonies. The imposition of an indeterminate sentence upon a misdemeanor conviction constitutes fundamental error because this type of sentence is not authorized by any statutory authority to be imposed as punishment for a misdemeanor. As fundamental error, such an unauthorized sentence is reviewable by appeal without a showing of harm and without being first raised in the trial court.

Accordingly, the conviction and sentence as to count 1 (grand theft) is affirmed. The misdemeanor convictions (petit theft in count 2, battery in count 3 and battery in count 4) are affirmed, but the indeterminate sentences as to those misdemeanors are hereby vacated and those counts are remanded for resentencing. The appellant must be present at such resentencing, Fla. R.Crim.P. 3.180(a)(9), 3.720, unless appellant’s request to be excused from attendance is approved by the court. Fla.R. Crim.P. 3.180(c).

AFFIRMED IN PART; SENTENCES VACATED AND REMANDED FOR RE-SENTENCING.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Welton Franklin ELZEY, III, Appellant, v. Tammy Irene SMITH, by her father and next friend, Tony F. Smith, Appellee.
    No. AB-169.
    District Court of Appeal of Florida, First District.
    April 14, 1982.

      Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    E. Brian Lang of Mann, Lang, Fiveash & Staples, Pensacola, for appellee.
   MILLS, Judge.

Following a non jury trial in a paternity action brought by Tammy, the trial court ruled that Frank was the father of the child borne by Tammy and ordered him to support the child. Frank contends the trial court erred in denying his motion to compel Tammy and the baby to submit to a Human Leukocyte Antigen (HLA) blood test and contends the trial court’s decision was against the manifest weight of the evidence. We agree that the trial court erred in denying Frank’s motion to compel an HLA blood test and reverse.

Prior to trial, Frank sought to compel Tammy and the baby to submit to an HLA blood test which is recognized as the most accurate test in excluding paternity and offered to pay all expenses incurred by Tammy and the baby in administering it. The test could not be administered until the baby reached six months of age. The trial court refused to compel the HLA test because “scientific tests can’t delay justice” and the trial court was not going to delay a proceeding for six months after birth “while some other litigant who is demanding relief sits there and waits while your client sits there free, free and clear.”

At trial, Tammy testified that she had sexual intercourse with Frank one time, on 8 June 1979. Frank denied this. Tammy adduced testimony from members of her family and friends that when confronted with Tammy’s pregnancy, Frank acknowledged the baby was his and he agreed to marry her. Frank denied this.

The older, less reliable, red blood cell tests were performed and Dr. Hilbert, a pathologist, who examined the results, stated they contained strong evidence against paternity. The child did not have one of the factors which is present in Frank, the “M” factor. He recommended that other tests such as the HLA test be performed to increase the certainty of exclusion.

Frank also introduced evidence of two sperm count tests which showed it was very unlikely that he could impregnate a woman. Dr. McCaughn, a urologist, testified that it was very unlikely that Frank could father a child because of his low sperm count. Dr. Frazier, an obstetrician/gynecologist, in response to a hypothetical question based on the sperm count tests, testified the chances were slim to extremely slim that Frank could impregnate a woman.

Barbara Snyder testified that Tammy told her she had sexual relations with Roger Morgan prior to and around the spring of 1979. Dr. Frazier stated that his examination of Tammy indicated she was sexually active.

On this evidence, the trial court found Frank to be the child’s father and awarded child support. Frank filed a motion for rehearing requesting the trial court to consider this court’s opinion in Carlyon v. Weeks, 387 So.2d 465 (Fla. 1st DCA 1980), and allow him to obtain the HLA blood test. He also requested a new trial because the trial court’s decision was against the manifest weight of the evidence. The motion was denied.

The issue before the trial court was whether Frank was the father of Tammy’s child.

Although Tammy concedes that the HLA test is the most accurate test known to medical science and although Dr. Hilbert recommended that the HLA test would establish the certainty of exclusion of paternity, the trial court denied Frank the right to this critical test. This was prejudicial to Frank’s defense. The trial court abused its discretion and this amounted to a denial of due process. Compare Bowden v. State, 187 So.2d 621 (Fla. 2d DCA 1962).

The trial court was concerned that Tammy and the baby would have to wait six months for the HLA test and this would place a great burden on them because they would need medical expenses and support during this time. It showed no concern that if Frank was wrongfully accused and declared to be the father, he would have to support a child that was not his for eighteen years.

It is often said that justice delayed is justice denied but justice must never move so swiftly that it ignores the rights of one of the parties.

Evidence of a single act of sexual intercourse was conflicting. Evidence of Frank’s acknowledgment that the child was his was conflicting. Evidence of Tammy’s prior chastity was conflicting. It was un-controverted that it was highly unlikely that Frank could impregnate a woman. It was uncontroverted that the red blood cell tests contained strong evidence against paternity. Dr. Hilbert, a pathologist, recommended that the HLA test be given because this test would establish the certainty of exclusion of paternity.

We reverse and remand to the trial court with instructions to require an HLA test of Tammy and the child at the expense of Frank. The testimony of the physician administering the HLA test may be presented by either party by requiring the physician to appear before the trial court or by deposition. The trial court shall then reconsider its ruling without the taking of further testimony or receiving additional evidence.

ROBERT P. SMITH, Jr., C. J., and DOW-NEY, JAMES C., Associate Judge, concur.


author: WIGGINTON, Judge.

text:
    Jo Ann Elizabeth HOLLEY, Appellant, v. James Lee HAYES and Universal Rental Properties, Inc., Appellees.
    No. AC-289.
    District Court of Appeal of Florida, First District.
    April 14, 1982.

      Steven E. Rohan, of Vickers & Rohan, P. A., Jacksonville, for appellant.
    John S. Duss, of Duss & Butler, Jacksonville, for appellees.
   WIGGINTON, Judge.

This is an appeal from the final judgment of the trial court denying, inter alia, Holley’s complaint against Hayes for a corporate accounting. We reverse.

Holley and Hayes were married in September, 1971. At the time of the marriage, Hayes had criminal charges pending against him for failure to file and pay federal excise and income taxes. He also at that time possessed $85,000 in cash and a substantial amount of stock. According to his own testimony, Hayes was in such constant fear that the I.R.S. would seize his property that he went so far as to place the cash in milk cans and bury it in the ground at his residence.

Following the marriage, in December, 1971, Hayes and Holley formed a corporation for the ostensible purpose of purchasing and holding income producing properties. However, further testimony revealed that the underlying objective was to protect Hayes’ assets from ultimate seizure by the I.R.S. by placing them in Holley’s name. Accordingly, the articles of incorporation designated Holley to be a subscriber to 98% of the corporate stock, with Hayes and Holley’s daughter to be subscribers each of 1%. The articles further designated Hayes to serve as president, Holley as secretary, the daughter as treasurer, and all three to serve as directors of the corporation.

Holley managed the corporately owned rental properties during the 10-month period Hayes was serving his criminal sentence. Following Hayes’ return, he primarily assumed these duties.

No corporate stock certificates were issued until April 1,1978, when the marriage was showing signs of crumbling. On that date, Hayes, acting unilaterally and with questionable authority, issued to himself one hundred shares of stock. He subsequently “sold” 75% of those shares to his son. It was disputed at the hearing whether Holley, as a director, was given proper notice of the meeting.

In November, 1978, Holley petitioned for divorce. While the parties continued to reside together, a default and final judgment was entered dissolving the marriage, awarding possession and ownership of several properties and adjudging Holley to be owner of 98% of the stock of the corporation. Hayes did not answer the initial complaint, and, upon his receiving a copy of the final judgment, elected not to appeal or otherwise contest it.

In 1980, Holley filed a complaint against Hayes and the corporation for an accounting and for the liquidation of assets of the business. Final judgment was entered denying Holley both the right to an accounting against Hayes and to the liquidation of assets against the corporation. As to the corporation, the trial court found that it had not been a party to the divorce proceedings and was therefore not bound by that court’s judgment holding Holley to be the owner of 98% of the corporate stock. Consequently the court ruled that she was not a shareholder for purposes of statutory liquidation under section 607.274, Florida Statutes. Couture v. Couture, 307 So.2d 194 (Fla. 3d DCA 1975). However, that point is not before this court on appeal.

Rather, Holley appeals that part of the final judgment holding that she was not entitled to an accounting against Hayes insofar as she was not a shareholder of the corporation. We agree with Holley’s position.

By virtue of the final judgment of dissolution of marriage, as between Holley and Hayes, Holley was adjudicated the owner of 98% of the stock of the corporation. Consequently, as between Holley and Hayes, that matter is res judicata for purposes of subsequent litigation. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Diejuste v. Davis, 400 So.2d 981 (Fla. 4th DCA 1981).

Accordingly, Holley is entitled to demand an accounting from Hayes. This cause is therefore reversed and remanded to the trial court for appropriate proceedings in accordance with this opinion.

JOANOS and THOMPSON, JJ., concur.


text:
    STATE of Florida, HENDRY COUNTY CORRECTIONAL INSTITUTE, DIVISION OF RISK MANAGEMENT (self-insured), Appellant, v. Danny R. HUGHES, Appellee.
    No. AD-256.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    R. David Donlin of Vernis, Bowling, West, Montalto & Goodman, Miami, for appellant.
    David McDonald of McDonald & McDonald, Miami, for appellee.
   PER CURIAM.

Following an emergency hearing, the deputy commissioner ordered the employer/carrier to pay for claimant’s transportation by ambulance to his father’s funeral, to be held a distance of approximately 125 miles from where the claimant was hospitalized. The employer/carrier appealed. We have jurisdiction. We reverse.

The facts are not in dispute. The claimant suffered a compensable industrial accident which required back surgery. Following the surgery, while the claimant was still in the hospital, his father died. Dr. Hall, the surgeon who performed claimant’s operation, was unwilling to allow claimant to attend his father’s funeral unless he was transported to and from the funeral by ambulance. The deputy commissioner convened an emergency hearing for the sole purpose of determining whether the employer/carrier should be required to pay for this transportation. Dr. Hall was the only witness. He testified that claimant was very close to his father, that claimant had a psychiatric condition which predated and was unrelated to his industrial accident, that he would suffer major psychiatric problems if he was unable to attend his father’s funeral, and that these problems may impede his recovery from surgery. The deputy commissioner found that it would be in the best interest of all parties that claimant attend his father’s funeral, and ordered the employer/carrier to pay the costs of transportation.

The employer/carrier is required to furnish an injured employee “such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon, or other recognized practitioner, nurse, or hospital, and for such period as the nature of the injury or process of recovery may require, including medicines, crutches, artificial members, and other apparatus.” In addition, “[a]n injured employee is entitled, as part of his remedial treatment, care, and attendance, to reasonable actual costs of transportation to and from the doctor’s office, hospital, or other place of treatment by the most economical means of transportation available and suitable in the individual case.” Section 440.-13(4), Florida Statutes (1977).

The statute does not require the employer/carrier to pay for travel undertaken for reasons unrelated to the treatment of injuries sustained by the employee in a compen-sable industrial accident. The death of the claimant’s father and claimant’s reaction to it are matters extraneous to his industrial injuries and are no different (except in degree) than any number of other misfortunes which we all must suffer, and which none of us may control. We recognize the debilitating effect which the death of a loved one can have on an individual recovering from the trauma of surgery, and we recognize the sympathy with which the deputy commissioner must have viewed the claimant’s plight. But, sympathy resulting from the recognition of a shared fate, however natural and human, cannot support this award.

The order of the deputy commissioner is reversed, and the cause is remanded with directions to dismiss the claim.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ., concur.

      . The order disposes of the only issue ripe for adjudication, the question of the employer/carrier’s responsibility to provide this transportation, and is, therefore, a final order.

      . A malfunction in the deputy commissioner’s recording equipment has resulted in the absence of a transcript of the hearing. Because the parties are in agreement as to the operative facts, we have treated this case as an appeal on stipulated facts pursuant to W.C.R.P. 18(c).

      . Claimant’s accident occurred on December 30, 1977. The benefits to which he is entitled and the duties of the employer/carrier are fixed by the statute in effect on that date, § 440.-13(1), Florida Statutes (1977). Phillips v. City of West Palm Beach, 70 So.2d 345 (Fla.1953).


text:
    DRUM SERVICE COMPANY OF FLORIDA and Risk Management Services, Inc., Appellants, v. Anibal SELLA, Appellee.
    No. AD-454.
    District Court of Appeal of Florida, First District.
    April 14, 1982.

      John A. Leklem of Miller & Cooper, P. A., Orlando, for appellants.
    J. Michael Matthews, Altamonte Springs, for appellee.
   PER CURIAM.

We affirm the deputy commissioner’s order except for the award of temporary total disability benefits from March 31, 1980 through June 23, 1980.

There is no medical evidence in the record that claimant was unable to work during this time due to his disability and the deputy found claimant failed to make an adequate job search. Thus, an award of temporary total disability benefits was error. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981).

Accordingly, the order is affirmed in part and reversed in part and remanded for proceedings consistent with this opinion.

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


text:
    ESTECH GENERAL CHEMICALS CORP. a/k/a Swift Agricultural Chemicals Corp. and Fred S. James and Co. of Florida, Inc., Appellants, v. Anthony RANDOLPH, Appellee.
    No. AE-94.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Patrick J. Malone of Beisler & Wells, West Palm Beach, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The employer/carrier appeal an order finding that the claimant suffered a com-pensable injury, finding the date of maximum medical improvement (MMI), and awarding temporary total disability (TTD), permanent disability, future care, fees and costs. We affirm in part and reverse in part.

The date of the accident was 5 October 1979, the date of MMI 28 July 1980. The only error was the award of TTD benefits for this entire period. There was no medical evidence that the claimant was incapable of work. The claimant was therefore required to test his disability in the job market, LeHigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). There was no evidence of a job search before 4 April 1980. Therefore the finding that the claimant was TTD during the period 5 December 1979 through 4 April 1980 was error.

The claimant must show the work search failed because of his disability, LeHigh, supra. He argues that he could not find employment because of the back brace he was wearing. Since Randolph is a laborer this is plausible except for the undisputed fact that the brace was prescribed on 28 July 1980, the date of MMI. No evidence was provided to link the failure of Randolph’s work search to the injury. The award of TTD from April to July 1980 is unsupported and must be reversed.

The order is AFFIRMED in all other aspects.

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


author: JO ANOS, Judge.

text:
    Durwood SMITH, Appellant, v. Jesse P. TYNES, Jr.; Thad Crossley, Larry Smith, and L. H. Lancaster, all constituting the Clay County Canvassing Board, Appellees.
    Case No. AE-329.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Frederick B. Tygart, Jacksonville, for appellant.

      Charles E. Waite of Cobb & White, Orange Park, for appellee Jesse P. Tynes.
    Eugene F. Shaw, Green Cove Springs for appellee Clay County Canvassing Bd.
   JO ANOS, Judge.

Smith’s amended complaint was dismissed, with prejudice, for failure to state a cause of action and he appealed. We affirm.

Smith and Tynes were candidates for election to the office of superintendent of schools in Clay County. Tynes won the democratic primary held September 9,1980, and, due to the absence of opposition in the general election, became superintendent. Smith challenged the result of the primary election alleging a cause of action under Section 102.168, Florida Statutes, together with violations of various subsections of Chapters 104 and 106, Florida Statutes. Specifically, in his amended complaint Smith alleged: on September 5, 1980, the “Clay Today” newspaper ran an article stating that Tynes had been endorsed by the political action committee of the Clay County School Board Employees’ Association, even though the Association had failed to file a disclosure statement pursuant to Section 106.144; on September 9, 1980, a campaign worker for Tynes placed a campaign sign within one hundred yards of a precinct, in violation of Section 104.36; a poll worker failed to remove the sign on request, in violation of Section 104.36; the same poll worker failed, on request, to place a marker one hundred yards from the polling place in order to prevent solicitation near polling places, in violation of Section 104.051; on September 4, 1980, Tynes ran a newspaper ad reflecting that he had the support of the Clay County Administrators Association, even though he had actual or constructive knowledge that the Administrators Association had not complied with the disclosure requirements Section 106.144. Smith further alleged that the enumerated violations “had an insidious and devastating effect upon the election for the office of superintendent of schools in Clay County, Florida to the extent that they were sufficient to produce a different result and had these acts not occurred, plaintiff, Durwood Smith, would have received a sufficient number of votes to win the democratic nomination for the office of superintendent of schools instead of defendant, Jesse P. Tynes, Jr.” Finally, Smith alleged that the enumerated acts constituted fraud and misrepresentation to the electorate sufficient to produce a different result.

The trial court dismissed the amended complaint with prejudice, pursuant to the following findings and conclusions:

None of the allegations contained in the complaint in any way alleges that the defendants violated any election laws. The plaintiff makes a bald allegation that the technical violations alleged were sufficient to produce a different result in the election. The law requires more than a mere allegation that such a violation could produce a different result; it must be shown that such violations would produce a different result.

The trial court correctly assessed the situation. Section 102.168 establishes the criteria for an election contest. That section provides, in pertinent part:

The certification of election or nomination of any person to office, . .. may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto .... Such contestant shall file a complaint .. . and the complaint shall set forth the grounds on which the contestant intends to establish his right to such office ....

It is established that in order to contest election results under this section, the challenger must show that, but for certain irregularities, the result of the election would have been different and he or she would have been the winner. See McQuagge v. Conrad, 65 So.2d 851 (Fla.1953); Anderson v. Canvassing and Election Board of Gadsden County, 399 So.2d 1021 (Fla. 1st DCA 1981); Napp v. Dieffenderfer, 364 So.2d 534 (Fla. 3d DCA 1978); Brake v. Gissendanner, 206 So.2d 10 (Fla. 3d DCA 1968). It is not enough to show a reasonable possibility that election results could have been altered by the irregularities; a reasonable probability that the results would have been changed must be shown. Nelson v. Robinson, 301 So.2d 508 (Fla. 2d DCA 1974), cert. denied 303 So.2d 21 (Fla.1974). The Florida Supreme Court noted recently that the statutory election contest has been interpreted to permit examination only of the balloting and counting process and that no authority has been found to extend the contest to areas outside the balloting process. McPherson v. Flynn, 397 So.2d 665, 668 (Fla.1981). In the instant case it is clear that, even if true, the alleged irregularities did not constitute abnormalities in the actual balloting and counting process.

Regarding the alleged violations of Chapter 104 of the election code and Chapter 106, campaign financing, the respective statutory provisions expressly provide for civil and criminal penalties for such violations. Section 104.051, provides that an official who neglects to perform his duties under the election code is guilty of a first degree misdemeanor, and an official who performs his duties under the election code fraudulently or corruptly is guilty of a third degree felony. Section 104.36 provides that any person who solicits votes within 100 yards of a polling place on election day is guilty of a first degree misdemeanor. Section 106.265 provides for civil penalties, to be imposed by the Florida Elections Commission, for violations of Chapter 106, including Section 106.144. To summarize, while sanctions exist for the type of irregularities alleged in the amended complaint, those sanctions are not designed to be imposed by way of a civil cause of action by an unsuccessful candidate. The remedy available to an unsuccessful candidate is limited to challenging the balloting and counting process in the statutory election contest. Since appellant did not allege irregularities in the actual balloting and counting process, his complaint under Section 102.168 was correctly dismissed for failure to state a cause of action.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


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    AUTOMATIC DATA PROCESSING and Insurance Company of North America, Appellants, v. Glen SCARBERRY, Appellee.
    No. YY-395.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Barbara J. Paulson of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.

      H. Guy Smith, Lakeland, for appellee.
   PER CURIAM.

Although the deputy commissioner did not set a limitation on the length of time that Scarberry may collect future medical benefits, we construe the order as awarding those benefits “in the manner and for the time provided by law.” See Lake Highland Nursing Home, et al. v. Everett, 397 So.2d 380 (Fla. 1st DCA 1981). Accordingly, we affirm the workers’ compensation order below because it was supported by record evidence.

We note with displeasure the argument presented by counsellor the employer and the Insurance Company of North America regarding future medical benefits. In the initial brief, counsel represented to this Court that the award of future medical care was improper because “the matter of future medical treatment was not placed at issue by stipulation of the parties.” As the claimant’s brief correctly stated, however, the parties’ pre-trial stipulation unmistakably included a claim for “future medical treatment.” In the reply brief, counsel for the employer/carrier conspicuously ignored her earlier misrepresentation of fact. We should not need to remind counsel of the ethical considerations implicated when an attorney advances a defense that is unwarranted, or knowingly makes a false statement of fact. Fla.Bar Code Prof.Resp., D.R. 7-102(A)(2), (5). The appellee’s motion for attorney’s fees is GRANTED in the amount of $2,500.

AFFIRMED.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


author: THOMPSON, Judge.

text:
    Grace DALTON, Appellant, v. Olin DALTON, Appellee.
    No. AB-480.
    District Court of Appeal of Florida, First District.
    April 15, 1982.

      Bill A. Corbin of Corbin Law Offices, P. A., Blountstown, for appellant.
    Tracy L. Riddle, Quincy, for appellee.
   THOMPSON, Judge.

This is an appeal from a final order denying an amended motion for rehearing and affirming a prior order of dissolution of marriage. We affirm.

On June 8, 1979, appellee filed a petition for dissolution of his marriage to appellant. An answer was filed by appellant, and discovery was conducted. On September 6, 1979, at an unreported hearing attended by both parties and their attorneys, the parties entered certain oral stipulations and agreements which agreements purportedly settled all issues between them. On October 11, 1979, the trial court entered its final order incorporating these stipulations and agreements. Appellant’s counsel then filed a motion for rehearing and a motion to withdraw as counsel. A hearing on these motions was noticed for November 8, 1979. Although the record before us includes no document evidencing the disposition of these motions, or even that any hearing was held on November 8, 1979, it appears that the motion to withdraw as counsel may have been granted since a notice of appearance of appellant’s present counsel was filed on February 14, 1980.

On February 19, 1980, appellant’s new attorney filed an amended motion for rehearing and affidavits in support thereof. Although the record includes no direct evidence that any hearing was ever held on this motion for rehearing, appellant contends that the amended motion was orally granted at an unreported hearing held on or about April 17, 1980. We find strong support for her contention in the fact that commencing April 18, 1980, both parties conducted additional discovery and generally acted as if they were preparing for a rehearing. On December 18, 1980, a hearing was finally held, which was attended by the parties and their attorneys, and by a number of witnesses. At this time, the trial judge refused the proffered testimony of appellant’s witnesses, and treated the hearing not as a rehearing on the merits, but as a hearing on the amended motion for rehearing, which motion he denied by written order dated February 23, 1981.

The thrust of the affidavits filed in support of appellant’s amended motion for rehearing was that the oral stipulations entered into by the parties at the September 6, 1979 hearing were not intended to dispose of all properties owned by the parties, and that the appellee had induced appellant to enter into the stipulation by fraudulently and perjuriously misrepresenting his financial status. Such allegations are insufficient to support a motion for rehearing where, as here, the evidence tending to show that appellee allegedly concealed his assets was available to appellant prior to the final hearing and was even the subject of inquiry by appellant during appellee’s deposition. Where a party has access to such evidence prior to trial or hearing, yet fails to show any excuse or justification for her failure to introduce the evidence at the trial or hearing, her motion for rehearing is properly denied. Mahan v. Parliament Insurance Co., 382 So.2d 402 (Fla. 4th DCA 1980). Accordingly, we affirm the trial court’s ultimate denial of appellant’s amended motion for rehearing.

We are somewhat disturbed by the erratic progress of this dissolution proceeding in the court below, and by the fact that judicial resources, as well as the time and resources of the attorneys, the parties and the witnesses, appear to have been wasted in preparation for a rehearing which was never actually ordered.

Although we sympathize with appellant, whose expectations of a rehearing were dashed, the trial judge did not commit reversible error in ultimately denying the amended motion for rehearing. An order does not take effect until signed and filed, and a court’s oral pronouncement at a motion hearing amounts only to a statement of the court’s present intention as to how it will rule. Barry v. Robson, 65 So.2d 739 (Fla.1953); Anders v. Anders, 376 So.2d 439 (Fla. 1st DCA 1979). The fact that the parties obviously believed that the amended motion for rehearing had been orally granted on or about April 17, 1980 cannot cure the absence from the record of a written and signed order granting the rehearing.

AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


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    DIVISION OF WORKERS’ COMPENSATION, BUREAU OF CRIMES COMPENSATION, Appellant, v. Gennie Bell TUCKER, on Behalf of her minor daughter, Shirley GADDIS, Appellee.
    No. AD-438.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    George W. Butler, Jr., Bureau of Crimes Compensation, Tallahassee, for appellant.
    Donald W. Stanley, Jr., of Knowlton & Stanley, Tampa, for appellee.
   WIGGINTON, Judge.

Without being specific, the deputy commissioner awarded “out-of-pocket costs incurred by the claimant, pursuant to Section 960.08 of the Florida Statutes,” in addition to other benefits under the Florida Crimes Compensation Act. In this appeal, the Bureau contends that this award of “costs” is not authorized by statute.

We construe the order as awarding proper Section 960.08 (1980 Supp.) expenses, which include only those costs relating to care and treatment or other services related to the injury. The statute does not empower a deputy to award costs of the litigation, such as attorney’s fees, witness fees, or deposition expense. See Department of Labor and Employment Security v. Cade, 400 So.2d 171 (Fla. 3d DCA 1981).

As construed, the deputy’s order is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.


text:
    Susan Allison LACHLE, Appellant, v. STATE of Florida, Appellee.
    No. AE-330.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is from the order of the trial court revoking appellant’s probation on the basis of an alleged misrepresentation made by appellant during the initial hearing. We hold the trial court was incorrect in revoking appellant’s probation when the conduct, upon which the State relied to show a violation of probation, did not violate a specific condition of probation or occur before the order of probation was imposed. § 948.-06(1), Fla.Stat. (1981); O’Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972); Suarez v. State, 391 So.2d 343 (Fla. 5th DCA 1980); Sutton v. State, 348 So.2d 626 (Fla. 3d DCA 1977); Morgan v. State, 341 So.2d 201 (Fla. 2d DCA 1976).

Accordingly, the order of the trial court is vacated and the original order withholding adjudication of guilt and placing appellant on probation is reinstated. The cause is remanded to the trial court with directions to enter an order consistent with this opinion.

JOANOS and THOMPSON, JJ., concur.


text:
    Dennis Leon FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. AF-403.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Rehearing Denied May 4, 1982.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   MILLS, Judge.

Francis appeals his conviction for robbery with a firearm. We affirm.

A convenience store was robbed by a black male carrying a shotgun and wearing a stocking cap. He was described as having a large nose and being very dark. There were four witnesses, two clerks and two customers. One clerk and one customer could not make any identification but the others positively identified Francis in court. A shotgun seized from Francis was admitted in evidence and Detective Kearney testified to a confession made by Francis.

Francis challenges the admissibility of the gun and of the confession. Francis was arrested in his home, pursuant to a warrant. This warrant was issued upon Kearney’s affidavit. In the affidavit Kearney described the robbery, identified Francis as a suspect and stated that a witness had positively identified a photograph of Francis. In fact the witness chose Francis’ photograph from a line-up and said that it most resembled the robber. Francis argues that this misstatement renders the warrant void and since a warrant was required, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the arrest was illegal. He further asserts that confession and consent to seize the weapon are fruits of the arrest and should be suppressed, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Whether a material misstatement in the supporting affidavit voids a warrant depends upon whether the misstatement was merely innocent or negligent or was intentional or reckless, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Mathes v. State, 375 So.2d 1084 (Fla. 1st DCA 1979). Upon proper allegations the trial court is required to hold a pretrial. evidentiary proceeding on this issue. This was done in this case with deposition testimony substituting for live testimony. After reviewing the evidence and hearing argument the court below denied the motion to suppress. A finding of innocent or negligent misrepresentation is supported by the record. Furthermore had the accurate word “tentative” been substituted for “positive” in the affidavit, cf. Mathes, supra, there would have been sufficient cause for the arrest warrant to issue. The admission of the confession and weapon was not error.

Francis also argues that the jury should have been instructed on robbery with a weapon, Reddick v. State, 394 So.2d 417 (Fla.1981). Reversal on this point is useless in light of the new Rules of Criminal Procedure 3.510, see Boston v. State, 411 So.2d 1345 (Fla. 1st DCA 1982); Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981).

For the above reasons the judgment below is affirmed.

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


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    Lucy Mae ORR and Curtis Orr, her husband, Appellants, v. Frank D’ANDREA d/b/a Continental Exteriors and/or Continental Exteriors, Inc., and Met Builders, Inc., a Florida corporation, Appellees.
    No. AF-434.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    William A. MacGuire, Orange Park, for appellants.
    Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   WIGGINTON, Judge.

The Orrs appeal the dismissal with prejudice of two negligence counts in their Second Amended Complaint against D’Andrea and Met Builders. Although the trial judge’s order does not inform us of the grounds upon which he dismissed the counts, the parties have argued below and in this appeal whether the complaint sufficiently alleged the existence of a legal duty, and whether the Orrs had “superior knowledge” of the allegedly hazardous condition created by the defendants so as to preclude a finding of liability. Because the order of dismissal cannot be sustained on either ground, we must reverse.

Count IV, directed against Met Builders, alleged the following facts: After the Orrs had contracted with D’Andrea to install a néw roof on their home, D’Andrea subcontracted with Met Builders. During the course of the work, the roofers littered the premises with discarded nails and “debris,” despite the Orrs’ repeated requests for them to pick up after themselves, and “even though in the exercise of reasonable diligence [Met Builders] knew or should have known that the presence of the nails and debris was a danger to [the Orrs].” When the work was complete and the roofers gone, Lucy Orr attempted the cleanup herself and was injured when a nail punctured her foot, causing hospitalization expenses and other damages “as a direct and proximate result of [Met Builders’] negligence in leaving the debris and nails in a place where [the Orrs] could be expected to come and go.”

Count V, with Curtis Orr as plaintiff, realleged these facts and additionally named D’Andrea as a defendant in his capacity as contractor and supervisor of the work. The count alleged that Curtis Orr had incurred certain damages as a result of his wife’s injury.

Met Builders, citing Slavin v. Kay, 108 So.2d 462 (Fla.1959), argues there can be no recovery because the injury occurred after the work had been completed, and any dangerous condition in the Orrs’ yard was obvious. The so-called “Slavin rule” established that a contractor is not liable for injuries to third parties after the owner has accepted the work, unless the defect at issue was latent and could not have been discovered by the owner, or unless the contractor was dealing with inherently dangerous elements.

Because no third party is involved in this case, the inapplicability of the Slavin rule is easily discernible. Even if Slavin were applicable, a contractor’s duty of care is discharged upon acceptance, not mere completion, of the work, so these defendants would not qualify for protection under the rule.

As Met Builders points out, Slavin requires that a property owner make the premises safe for third parties when he discovers, after accepting a contractor’s work, a dangerous defect. Here, Lucy Orr was attending to that duty when she was injured. Other jurisdictions have held that a contractor is charged with a duty to leave the premises free from any hazards to safety which he may have created. E.g., Smith v. Fitton and Pittman, 264 S.C. 129, 212 S.E.2d 925 (1975); Cox v. Ray M. Lee Company, 100 Ga.App. 333, 111 S.E.2d 246 (1959).

While the Orrs’ complaint is not a model of clarity, it is not legally deficient in its attempt to allege a duty and breach by Met Builders. In Florida, a party pleading negligence is required to “allege ultimate facts showing a relationship out of which a duty is implied by law and sufficient acts or omissions causing the injury, coupled with the averment that they were negligently done or omitted.” Tims v. Orange State Oil Company, 161 So.2d 844 (Fla. 2d DCA 1964). Because the Orrs’ Second Amended Complaint contained these elements, it was error to dismiss the negligence counts for failure to allege a duty or a breach.

The appellees also argue that the Orrs had “superior knowledge” of the dangerous condition in the yard, so the builders cannot be held responsible for the injury. However, we believe that the extent of Lucy Orr’s knowledge of the danger on her property, compared to the builders’ negligence in creating the hazard, is a question properly within the province of the trier of fact.

Our opinion today is necessarily limited to Counts IV and V of the Second Amended Complaint. We decide only that those counts sufficiently allege a cause of action, and this opinion should not be construed as approving those counts, or the Second Amended Complaint, in any other respect.

Accordingly, the order of the trial court is vacated and the cause remanded for further proceedings.

JOANOS and THOMPSON, JJ., concur.

      . We note that since issuing its Slavin opinion, the Florida Supreme Court decided Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, we are not asked to decide how the “Slavin rule” may be affected by the doctrine of comparative negligence.


text:
    Eldridge Lee CEPHAS, Appellant, v. STATE of Florida, Appellee.
    No. 81-605.
    District Court of Appeal of Florida, Second District.
    April 16, 1982.
    Jerry Hill, Public Defender, Michael E. Raiden and Paul C. Helm, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation was revoked for (1) failure to submit monthly supervision fees and (2) failure to make three monthly reports. The record is void of any finding concerning solvency as required in Peterson v. State, 384 So.2d 965 (Fla.2d DCA 1980). But there is substantial evidence to support the revocation for failure to submit monthly reports. Accordingly, we strike the count which pertains to failure to submit monthly supervision fees. We affirm appellant’s revocation on the remaining count.

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


text:
    William E. PARMENTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-276.
    District Court of Appeal of Florida, Second District.
    April 16, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Appellant raises for the first time on appeal the issue of whether his sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Because Villery suggests that this issue be brought to the attention of the trial court in the first instance, we do not consider it on this appeal. However, this affirmance is without prejudice to appellant’s raising this issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    David Theodore WIENKE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1747.
    District Court of Appeal of Florida, Second District.
    April 16, 1982.
    Robert W. Pope, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant complains that the court improperly revoked his probation.

Appellant’s probation supervisor filed an affidavit alleging that he had violated his probation by trespassing in violation of the law and by failing to spend a year in a community correctional facility as required by the probation order. At the hearing the state simply showed that appellant had pled guilty to a charge of trespassing for which he had been sentenced to three days time served and that apparently as a result of the conviction he would not be reaccepted into the community correctional work release center. Appellant testified that the trespass came about as a result of a misunderstanding and that it was not really his fault.

We cannot accept appellant’s argument that the proof concerning his conduct was insufficient as a matter of law to satisfy the conscience of the court that the violations occurred. Appellant’s testimony about the circumstances of the trespass was certainly relevant because his conviction did not obligate the court to revoke his probation. Nevertheless, the state’s proof that he had committed a crime provided a basis upon which the court could revoke probation. E.g., Egantoff v. State, 208 So.2d 843 (Fla.2d DCA), cert. denied, 218 So.2d 164 (Fla.1968). Hence, this court cannot second-guess the court’s decision to do so.

AFFIRMED.

SCHEB, C.J., and GRIMES and CAMPBELL, JJ., concur.


text:
    Opal DAVIS, Appellant, v. SUN BANKS OF ORLANDO and Hartford Insurance Company, Appellees.
    No. AF-201.
    District Court of Appeal of Florida, First District.
    April 19, 1982.
    James M. Magee of Neduchal & Magee, Orlando, for appellant.
    Robert C. Cooper of Cooper & Rissman, Orlando, for appellees.
   MILLS, Judge.

The claimant appeals from a workers’ compensation order denying her claim for an emotional injury. We affirm.

Emotional injuries due to fright or excitement unassoeiated with physical injury are excluded from the Workers’ Compensation Act. Section 440.02(18), Florida Statutes (1981). Injuries of this nature are the proper subject of a civil action. Williams v. Hillsborough County School Board, 389 So.2d 1218 (Fla. 1st DCA 1980).

Where a civil action is dismissed with prejudice because the exclusive remedy is under the Act and the deputy subsequently denies the claim because it is excluded from coverage by the Act, the deputy does not have authority to establish a remedy by applying equitable principles.

For the information and benefit of the attorneys and their clients, I shall not render a per curiam affirmed opinion hereafter.

First, I shall sign all opinions in cases assigned to me for primary responsibility.

Second, I shall write a short opinion in each case assigned to me and shall tersely give the reason for affirming each issue raised by the appellant or cross appellant.

I hope that this action by me will answer .the frequent complaints about per curiam affirmed decisions. The attorneys and their clients will generally know why their cases are affirmed. The possible remedies from adverse decisions will be preserved for consideration by the Supreme Court.

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


text:
    VITAL INDUSTRIES, INC., a Florida corporation, Petitioner, v. Dale BUZAN, Respondent.
    No. AI-229.
    District Court of Appeal of Florida, First District.
    April 20, 1982.
    Eilon Krugman-Kadi, Gainesville, for petitioner.
    Paul G. Wright, of Anderson & Wright, P. A., Gainesville, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the trial court’s order granting execution on summary final judgment, entered December 10, 1981, is quashed.

On November 10, 1981, this Court dismissed an appeal from the summary final judgment upon counterclaim stating that the appeal was being dismissed because the order was neither a final order nor an ap-pealable non-final order under Rule 9.130, Fla.R.App.P. The November 10 order was based on this Court’s determination that the counterclaim was a compulsory counterclaim and therefore no appeal could be taken until final disposition of both the claim and counterclaim. See S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Ryder Truck Lines, Inc. v. Pough, 392 So.2d 590 (Fla. 3rd DCA 1981).

Since the summary final judgment on counterclaim was not a final judgment or order, the trial court erred in entering its order granting execution.

We have also considered the order denying motion to disqualify and find no error.

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