author: MILLS, Judge.

text:
    In the Interest of I. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. SS-253.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Rehearing Denied Nov. 20, 1981.

      Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Appellant was taken into custody on 6 July 1979 as a burglary suspect and an information was filed on 10 July. An amended information was filed on 16 July. Appellant was a juvenile but was 16 years old, and the information was filed pursuant to § 39.04(2)(e)(4), Florida Statutes (1978 Supp.), which provides that the state attorney may: “[w]ith respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed.” On 21 September, the juvenile filed a motion to transfer based on the following sentence of the same provision, “Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to § 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida laws as a felony.” On 27 September the motion was granted and the case was transferred to juvenile court, returnable for October 1979.

The State never filed a petition of delinquency. On 6 November 1979 the juvenile filed a motion to dismiss, urging three grounds: (1) that no petition had been filed in the juvenile division and therefore the court was without jurisdiction to hear the matter, (2) that no petition had been filed within 45 days from the date the complaint was referred to the intake officer as required by § 39.05(6), and (3) that 90 days had expired since the child was taken into custody and the child was entitled to discharge pursuant to § 39.05(7)(a)(l) and Rule 8.180(a)(2), Fla.R.Juv.P.

After a hearing, the trial court denied the motion, ruling that the amended information constituted a petition for purposes of these proceedings. Thereupon, the juvenile entered a nolo plea reserving the right to appeal the denial of the motion to dismiss. We affirm.

I.

Initially, it must be noted that the contention by appellant that the information was “inappropriately filed in adult court” is not accurate. The statute allows the state attorney to file an information against any juvenile who is 16 or 17 years of age when in his discretion it should be done. The fact that the statute also allows for the juvenile to file a motion to transfer back to juvenile court under certain circumstances does not in any way imply that the initial filing of the information was inappropriate.

The question of whether a case which was filed properly in adult court, but transferred back to juvenile court under statutory authority, requires that a petition of delinquency be filed is one of first impression. On the one hand, it would appear that the juvenile court was vested with jurisdiction because the juvenile filed a motion to transfer from adult court to juvenile court and this motion was granted. The basis of the motion to dismiss, a challenge to the juvenile court’s jurisdiction based on the failure to file a petition, seems not to acknowledge this new statute which allows for this method of transfer.

On the other hand, appellant has filed a notice of additional authority, citing A.D.T. v. State, 318 So.2d 478 (Fla. 1st DCA 1975), wherein this court ruled that waiving jurisdiction of juvenile court by allowing a grand jury indictment to be amended and used as a substitute for a delinquency petition in a case involving a non-capital offense weis improper. There the court pointed out that juveniles constitute a special and distinct class of citizens to be afforded unique treatment by the state and discussed the purposes of separate and special juvenile procedures. That case is distinguishable, however, because there the state failed to invoke through proper pleading the jurisdiction of either court. It failed to file a petition in juvenile court and it filed an indictment for a non-indictable juvenile offense in adult court. In the instant case, the information filed in adult court was authorized by statute and gave the adult court jurisdiction over the cause. By the same token, the transfer to juvenile court was authorized by the same statute and gave the juvenile court jurisdiction.

We note that appellant has not alleged that he was misled or prejudiced by the failure of the state to file a document captioned as a petition of delinquency. Under Rule 8.110(d), Fla.R.Juv.P., no petition shall be dismissed because of a defect in the form unless the court shall be of the opinion that the petition is so vague, indistinct and indefinite as to mislead the child or his parents and prejudice him in the preparation of his defense.

Accordingly, we hold that while the better practice would be for the state to substitute a petition of delinquency for the information before trial when a case is transferred to juvenile court pursuant to Section 39.04(2)(e)(4), failure to do so did not and does not divest the juvenile court of jurisdiction.

II.

Regarding, the contention embodied in the second ground urged for dismissal, that no petition had been filed within 45 days from the date the complaint was referred to the intake officer as required by 39.05(6), we hold that, based on our ruling on the first issue, the information effectively served as a petition for purposes of meeting this time requirement. We agree, as appellant urges, that S.R. v. State, 346 So.2d 1018 (Fla.1977), holds that a juvenile’s right to have a petition filed within 45 days is substantive. We also agree, as appellant urges, that this court held in T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978), that a juvenile has a substantive right to have the charge dismissed if it is untimely filed. The trial court’s refusal to dismiss a second petition which had been filed more than 30 days (the time limit then in effect) after the complaint had been filed with the Division of Youth Services even though the initial petition which contained materially incorrect information had been timely filed was error. The distinguishing factor between T.R. and the instant case is that there the first accusatory document was fatally defective, whereas here the accusatory document was fully proper and authorized by statute. Under these circumstances, a reading of T.R. indicates that the first accusatory document could be amended to the extent that the amendments would be formal and not material without affecting the timeliness of the filing. Here we have held that the information could serve as the petition, but we further state that if, as would be the better practice, a petition for delinquency were substituted for the information, the changes in form would not affect the timeliness of the first accusatory pleading.

In the Interest of S.E.B., 365 So.2d 451 (Fla. 1st DCA 1978), is similarly distinguishable because of the finding that the first accusatory pleading was fatally defective. The facts there were that a juvenile was taken into custody, a complaint was filed, and then the state indicted the juvenile for an offense that was not indictable. After the indictment was dismissed, the state filed a petition (118 days after the complaint had been filed) and the petition was held to be untimely because the juvenile court had never been divested of jurisdiction by the improper indictment and there had been no waiver hearing. Again, the difference is that in the instant case the first accusatory pleading was not improper, in fact it was explicitly authorized. Furthermore the juvenile court was divested of jurisdiction by the filing of the information in this case. See Lott v. State, 400 So .2d 10 (Fla.1981).

III.

Finally, appellant contends that since 90 days had expired between the time he was taken into custody and the hearing on the motion to dismiss, he was entitled to discharge under the speedy trial provisions of the statute and the rules. This contention has been ruled on adversely to appellant in W.M. v. Tye, 377 So.2d 225 (Fla. 4th DCA 1979), and we agree with our sister court’s analysis and result. As held in that case, the 90 day speedy trial time set forth in 39.05, Florida Statutes (1978 Supp.), is applicable, but the time during which the case was pending in adult court must not be counted in determining the expiration of the 90 day period. Accord, State ex rel., Ortez v. Brosseau, 403 So.2d 549 (Fla. 2d DCA 1981); in so ruling, the Fourth District Court of Appeal points out:

If the petitioner’s contention was upheld after the case was transferred to the Circuit Court pursuant to Section 39.-04(2)(e)(4), petitioner could wait until the 90 day period had nearly expired and then have the case transferred back to Juvenile Court and there would then be inadequate time under the 90 day rule for the State to bring petitioner to trial. Surely that sort of procedural game playing was not contemplated by the Legislature.

377 So.2d at 226.

The situation presented to the Supreme Court in State v. Benton, 337 So.2d 797 (Fla.1976), wherein a juvenile was certified for trial as an adult and the state contended that the speedy trial time of 180 days under Rule 3.191, Fla.Crim.P., should not have commenced until he had been certified, is quite different. There, the Supreme Court said there was no justification for restarting the procedural time clock because the state, even though it may not proceed in the adult forum until certification, must be prepared to proceed in the juvenile forum within 90 days in both misdemeanor and felony situations. The opposite result obtains under the facts of the instant case because until the cause is transferred to juvenile court the state need only be prepared to proceed within 180 days of the time the defendant is taken into custody. Here, the transfer triggers a shorter speedy trial time, rather than a longer one, and there is justification for adjusting the procedural time clock to exclude the time during which the case was pending in Circuit Court.

Accordingly, the trial court’s denial of the motion to dismiss is AFFIRMED.

McCORD and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    William Joseph TOMMANEY, Appellant, v. Willa Brown TOMMANEY, Appellee.
    No. 81-10.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1981.
    Rehearing Denied Nov. 9, 1981.
    W. Van Sharman, St. Petersburg, for appellant.
    Joan LoBianco Walker of Walker & Az-dell, St. Petersburg, for appellee.
   GRIMES, Judge.

This appeal from a judgment of dissolution involves the propriety of an award to a wife of a special equity in her husband’s one-half interest in the marital home.

The Tommaneys married in Bermuda in 1967. Mr. Tommaney was a senior engineer and technician in the space program while Mrs. Tommaney worked as a resident physician at a local hospital. In 1969, his job was terminated, and they returned to Maryland where he became employed. She took a two and one-half year residency at Johns Hopkins University Hospital. While they were in Maryland, he developed a problem with alcoholism, and his earnings decreased considerably.

The Tommaneys moved to Florida in 1974, and Mrs. Tommaney obtained a job at the Pinellas County Health Department. She then opened a joint bank account into which she put all her earnings. She used the funds from this account to support the family. Mr. Tommaney deposited very little into this account but rather set up another account in his own name into which he put his earnings. He used this account to pay for entertainment and telephone bills.

Mr. Tommaney had long periods of unemployment during which he only tried to find a job in the narrow field of his particular interest. However, shortly before the dissolution, he obtained a good job in telephone engineering which paid about $33,000 a year. During the marriage, he earned $117,588, whereas Mrs. Tommaney earned $289,299. At the same time, he had child support obligations of $31,031 from a previous marriage, much of which was paid out of Mrs. Tommaney’s earnings. In addition to her job, Mrs. Tommaney performed most of the traditional duties of a housewife. She also nursed her husband to recovery from a heart attack in 1977.

The Tommaneys used a $10,000 certificate of deposit acquired by Mrs. Tommaney out of her earnings as the down payment on the marital home in Florida. They took title to the home, which cost $55,000, as tenants by the entireties. Later, they used $7,500 of the proceeds from the sale of their jointly owned Maryland home for improvements on the house. All of the mortgage payments came out of Mrs. Tommaney’s earnings. The home was recently appraised at $117,000, but it is encumbered with a mortgage balance of $40,000. Excluding their interest in the home, Mr. and Mrs. Tommaney each now have assets worth about $15,000.

The court awarded Mrs. Tommaney a special equity in her husband’s interest in the home and furnishings “by virtue of her extraordinary contribution to the marriage.” There was no award of alimony or attorney’s fees.

Since Ball v. Ball, 335 So.2d 5 (Fla.1976), most special equities have been grounded upon the contribution of funds from sources unconnected with the marital relationship. If this were the only basis for a special equity, we could not sustain the judgment in this case because the funds used by Mrs. Tommaney to pay for the home did not come from sources unconnected with the marital relationship. However, it is clear that special equities may still arise from circumstances other than those contemplated by Ball. Thus, in Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980), the court said:

The term “special equity” was judicially created to avoid the harshness of the statutory rule that absolutely prohibited alimony for an adulterous wife. See Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932). In its true sense, a “special equity” is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties. Eakin v. Eakin, 99 So.2d 854 (Fla. 1958). See, e. g., Ball v. Ball, 335 So.2d 5 (Fla.1976) (property acquired with inherited funds of one spouse); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) (one spouse entered the marriage with possession of realty and personalty); and Green v. Green, 228 So.2d 112 (Fla.3d DCA 1969) (one spouse contributed special labor toward accumulation of the other spouse’s wealth). A special equity in property held as tenants by the entirety will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities. Ball v. Ball; accord Fiedler v. Fiedler, 375 So.2d 1119 (Fla.2d DCA 1979).

Following the lead of Duncan, this court in Neff v. Neff, 386 So.2d 318 (Fla.2d DCA 1980), recognized that a wife who has taken an active part in the family business might, in the proper circumstances, be entitled to a special equity in that business when the marital assets are allocated upon the dissolution of the marital partnership. Therefore, the question before us is whether the court was justified in concluding that Mrs. Tommaney’s contributions to the marriage were so extraordinary as to entitle her to a special equity in the home. In view of the unusually broad discretion accorded to trial judges in dissolution cases since Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we will sustain the special equity.

This is not simply a case in which the wife earned more than her husband. See Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980). Nor is it a case in which the wife contributed her earnings to the purchase of a home and the husband used his to support the family. See Hoch v. Hoch, 380 So.2d 499 (Fla.2d DCA 1980). Here, not only did Mrs. Tommaney earn the most income while performing the duties of a housewife, she also paid for the home, provided most of the support for the family, and enabled her husband to meet his child support obligations. Hence, the court could find that this is one of the exceptional cases in which a special equity may rest upon an extraordinary contribution to the marriage. While another judge might have felt that Mrs. Tommaney’s contributions were not extraordinary enough, we believe there was sufficient evidence in the record to support this judge’s determination.

As our supreme court said in Canakaris:

We cite with favor the following statement of the test for review of a judge’s discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir. 1942). 382 So.2d at 1203.

AFFIRMED.

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


author: PER CURIAM.

text:
    ALTERMAN TRANSPORT LINES, INC., et al., Appellants, v. STATE of Florida, Appellee.
    No. WW-391.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.

      Barry Richard, of Roberts, Miller, Bag-gett, LaFaee, Richard & Wiser, and M. Craig Massey, Tallahassee, for appellants.

      Jim Smith, Atty. Gen., and John Rimes, Asst. Atty. Gen., for appellee.
    James E. Wharton, Orlando, for interve-nors-appellants.
    Bernard C. Pestcoe and Michael T. Greif, of Baskin & Sears, Miami, for Florida Movers & Warehousemen’s Ass’n, Inc., and Capital City Moving & Storage Co., Inc.
    Robert M. Rhodes and H. Michael Mad-sen, of Messer, Rhodes, Vickers & Hart, Tallahassee, for intervenors-appellees Central Florida Bus Lines, Inc., and Florida Ass’n of Passenger Carriers, Inc.
   PER CURIAM.

Appellants, primarily motor carriers holding certificates of public convenience and necessity issued by the Florida Public Service Commission pursuant to Chapter 323, Florida Statutes, seek review of a final judgment which dismissed with prejudice appellants’ complaint challenging the constitutionality of the “Sunset Act” as it pertained to deregulation of intrastate motor carriers and the trucking industry. We affirm.

The regulatory Reform Act of 1976 (commonly known as the “Sunset Act”), which became effective June 17, 1976, repealed a number of regulatory statutes staggered over a four-year period beginning July 1, 1978. The act also provided that within one year prior to the date that the regulatory statute was to stand repealed, the Legislature was to review the regulatory statute to determine whether it should be reestablished.

Included in the schedule of regulatory statutes scheduled to expire on July 1,1980, was Chapter 323 et seq., Florida Statutes, the motor carriers and freight forwarding act, by which the Public Service Commission had been granted regulatory authority over intrastate motor carriers. The 1980 session of the Florida Legislature failed to reenact Chapter 323. Instead, during that session, the Legislature enacted Chapter 80-298, Laws of Florida, which transferred to the Department of Transportation certain Public Service Commission employees charged with enforcing motor carrier regulations and which authorized the Department of Transportation to promulgate and enforce weight and safety regulations applicable to intrastate motor carriers.

The initial complaint was filed by Alter-man Transport Lines, Inc., a corporation, and 11 other motor carriers, all of whom held certificates of public convenience and necessity under Chapter 323, Florida Statutes, and each of whom were engaged in the commercial transportation of persons and goods within the State of Florida. Also joining as plaintiff was Tropitone Furniture Co., Inc., a non-motor carrier, engaged in a business wholly dependent on and regularly utilizing the services of intrastate motor carriers. The complaint alleged in substance that each of the plaintiff motor carriers, by virtue of their respective certificates of public convenience and necessity, had a statutory right to seek redress in the courts against one who, without possessing such a certificate, sought to compete against a certificate holder, and that the plaintiff “consumer” likewise had a statutory right to protest the issuance or transfer of any certificate or to protest a change of rate or schedule, with redress to the courts for any injury caused by a carrier’s failure to comply with the provisions of Chapter 323, Florida Statutes; thus, it was alleged, the repeal of Chapter 323 had the effect of depriving plaintiffs of the right of access to the courts in violation of Article I, Section 21, Constitution of Florida (1968).

Gator Freightways, Inc., a corporation, and four other corporations were permitted to intervene as plaintiffs, challenging the constitutionality of the Sunset Act as it related to the repeal of Chapter 323, on several other grounds, some of which have been argued on this appeal. Upon motion of the state, and others who had been allowed to intervene as defendants, the court determined that neither the original complaint as amended, nor the complaint filed by the intervenors, stated any facts or legal theories under which the legislative repeal of Chapter 323, Florida Statutes, would be unconstitutional; it therefore dismissed the complaints with prejudice.

Appellants, consisting of the original plaintiffs together with the intervening plaintiffs, have raised six points on this appeal: (1) the repeal of Chapter 323 denies appellants access to the courts contrary to Article I, Section 21, Florida Constitution; (2) the repeal of Chapter 323, effective July 1, 1980, operates to take from appellants valuable property rights without due process or just compensation, or operates to impair valid existing contracts between appellants and the state, all in violation of the constitutions of the State of Florida and the United States; (3) Chapter 323 was, in fact, reenacted by Chapter 77-434, Laws of Florida; (4) the Regulatory Reform Act of 1976 was an invalid attempt by the 1976 Legislature to bind subsequent legislatures; (5) Chapter 76-168, Laws of Florida, violated Article 3, Section 6, Florida Constitution, relating to title; and (6) the repeal of Chapter 323 subjects appellant motor carriers to the penalties of the antitrust statutes. Although none of these points require reversal, several merit discussion.

Appellants first contend that the repeal of Chapter 323, and specifically Section 323.24, Florida Statutes, abridges their right of access to the courts to seek injunc-tive relief and damages for interference with their routes established by certificates of public convenience and necessity, in contravention of Article I, Section 21, of the Florida Constitution, which provides as follows: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” (emphasis supplied)

In support of this argument, appellants rely primarily on Kluger v. White, 281 So.2d 1 (Fla.1973).

It is our view that the deprivation of appellants’ privilege to be immune from competition is not the type of injury protected by Kluger and its progeny. Appellants have not been denied entry into the market, nor have they been prohibited from exercising their competitive rights. Their “injury”, if any, is competition in the market place.

To define competition as an “injury” within the context of Article I, Section 21, would be in direct contravention of public policy, a result to which this court cannot and should not subscribe. Certainly Kluger cannot be elevated to thwart this state’s public policy.

Even if exposure to competition could be deemed a protected “injury”, we still find no such constitutional infirmity in the repeal of Chapter 323. No substitute remedy need be supplied by legislation which only reduces but does not destroy a cause of action. Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). Nor does the elimination of one possible ground of relief require the Legislature to provide some replacement. Estate of Roberts, 388 So.2d 216 (Fla.1980). The repeal of Chapter 323 leaves intact appellants’ common law remedies in tort, nuisance and contract. Further, the Legislature has provided numerous statutory remedies to protect the appellants’ interest. Chapter 501, Florida Statutes, addresses unfair and deceptive trade practices. Appellants are protected from predatory price discrimination by Chapter 540 and from combinations in restraint of trade by Chapter 542. In view of this impressive and varied array of alternative remedies, we conclude that the repeal of Chapter 323 does not deny appellants access to the courts of this state.

Appellant carriers also argue that the repeal of Chapter 323 unconstitutionally deprives Florida consumers of their access to the courts to bring suit to stop the abandonment of unprofitable routes or to challenge the setting of motor carrier rates. However, carriers previously regulated by Chapter 323 had no standing to raise such issues. See State v. Philips, 70 Fla. 340, 349, 70 So. 367 (1915). Therefore, they cannot claim to have been deprived of a right of access which they never had. As regards plaintiff Tropitone, it still has, as do all consumers, the right of access to the courts under Chapters 501, 504 and 542 and as always, they have the right to refuse the use of the motor carriers if their rates are found to be excessive or for any other reason.

Appellants next contend that the repeal of Chapter 323 impairs valuable contractual rights. “Every certificate of public convenience and necessity ... is, in most cases in its last analysis, a statutory license to enjoy a protected public monopoly.” Tamiami Trail Tours, Inc. v. Railroad Commission of Florida, 120 Fla. 371, 163 So. 1, 6 (1935). As such a certificate of public convenience and necessity is akin to a liquor license, which is in effect a quasi-monopolistic license by reason of the limitations representing the number and location of liquor stores and the conditions under which they are operated. We recognize that liquor licenses, much like certificates of public convenience and necessity, have the quality of property with an actual pecuniary value, both real and for taxable purposes, in excess of their stated cost. House v. Cotton, 52 So.2d 340 (Fla.1951). Despite these qualities, the courts of Florida have consistently held that a liquor license is not a contract, e. g., State ex rel. First Presbyterian Church v. Fuller, 136 Fla. 788, 187 So. 148 (1939); House v. Cotton, supra; Leafer v. State, 104 So.2d 350 (Fla.1958), nor is it property in a constitutional sense. First Presbyterian Church, supra; Yarbrough v. Villeneuve, 160 So.2d 747 (Fla. 1st DCA 1964). Indeed, it has been held that a liquor license can be subjected to further regulation or even revocation, at the pleasure of the legislature. Davidson v. City of Coral Gables, 119 So.2d 704, 709 (Fla.3d DCA 1960). So, too, must we regard a certificate of public necessity. Since a certificate is not property in any constitutional sense and conveys no vested interest, it is at all times revocable at the will of the people of Florida, as expressed by and through their elected representatives. We note that several other states have reached similar conclusions. See Greater Wilmington Authority v. Kline, 285 A.2d 819 (Del.Sup.Ct. 1971); In Re Application of Ft. Crook-Bellevue B. Line, 283 N.W. 223 (Neb.1939). To paraphrase a biblical quotation, that which the the legislature giveth, so may it taketh away.

As to appellants’ third Point, we find that Chapter 323 was not reenacted by Chapter 77-434, Laws of Florida. While Chapter 77-434 made numerous amendments to Chapter 323, we find the legislature did not intend to completely rewrite or revise the trucking regulatory statutes as envisioned by the “Sunset Act”. In fact, we find the contrary intent expressed by the same legislature. Chapter 77-A57, Laws of Florida, amended the “Sunset Act” again, repealing Chapter 323, effective July 1, 1980.

Statutes relating to the same subject matter passed during the same legislative session should be construed together and harmonized so as to give effect to each. Tamiami Trail Tours v. City of Tampa, 31 So.2d 468 (Fla.1947). As the court stated, in Oldham v. Rooks, 361 So.2d 140 (Fla. 1978), at p. 143:

There is a general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication, [citations omitted]

Applying the above authority to the facts before us, we find the amendments to Chapter 323 were intended to be effective until repeal of Chapter 323 on July 1, 1980, or until legislative reenactment of Chapter 323.

Regarding appellants’ fourth Point, we find no impermissible attempt by the 1976 Legislature to bind subsequent legislatures. Even had the 1976 Legislature sought to bind subsequent legislatures, a subsequent legislature still could have rescinded the statute. Chapter 76-168, which provided that Chapter 323 was repealed effective July 1, 1980, was not advisory. Had a subsequent legislature wished to change the repeal date, it could have done so. It did not. Therefore, Chapter 323 was repealed on July 1, 1980.

Appellants next contend that the titles of Chapter 76-168 and Chapter 77-457 contravene the requirements of Article III, Section 6, Florida Constitution. We find no constitutional infirmity in the titles of the acts. Article III, Section 6, states: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title .. . . ” This provision imposes two related but distinct requirements. First, the title of the bill should be fair notice of its contents. Second, the various provisions of the bill must be germane to the subject as expressed in the title. Sutherland, Statutory Construction, § 17.01 (4th Ed. 1972). These requirements are designed to prevent surprise or fraud that would spring from hidden provisions not indicated in the title. Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966). The subject of an act may be as broad as the legislature chooses provided the matters included in the law have a natural and logical connection. Board of Public Instruction of Broward Co. v. Doran, 224 So.2d 693 (Fla.1969). The proper test is whether the title is worded so as not to mislead a person of average intelligence as to the scope of the law and whether it is sufficient to put that person on notice and cause him to inquire into the body of the statute itself. Williams v. State, 370 So.2d 1143 (Fla.1979).

In order to comply with the requirement that the subject of a law be briefly expressed in the title, the title need not be an index of all the features of the legislation. A general statement of the subject is all that is required; indeed, a brief, general statement is preferred over a detailed listing, [citations omitted]

City of Pensacola v. Shevin, 396 So.2d 179, 180 (Fla. 1981).

The relevant portions of the title to Chapter 76-168, Laws of Florida, reads as follows:

An act relating to legislative review of programs and functions which regulate a profession, occupation, business, industry and other endeavors; repealing various chapters and sections of the Florida Statutes, relating to such programs and functions; providing for periodic legislative review, modification and re-establishment of such programs and functions ....

A reading of the title gives fair notice that the act deals with review of programs and functions which regulate a profession, occupation, business, industry and other endeavors. It also gives notice that certain sections of the Florida Statutes which regulate the various professions will be repealed. We find that reasonable persons would be put on notice by the title of the act and thus would inquire whether the regulations governing their profession or occupation were affected by the act.

Even if the title to the acts could be held defective, any infirmities or defects in the title were cured when the acts were reenacted into the Florida Statutes. See Section 11.61, Florida Statutes (1979).

The rule in Florida is that all infirmities or defects in the title of a reenacted statute are cured by reenactment; and this is true whether the statute has been previously declared inoperative or not.

Belcher Oil Co. v. Dade County, 271 So.2d 118, 121 (Fla.1972). Accordingly, we find no title defect in the legislation now under attack.

On this point, appellant also urges that the “Sunset Act” is invalid because it depends on other laws for its effectiveness, citing as authority Auto Owners Insurance Co. v. Hillsborough County Aviation Authority, 153 So.2d 722 (Fla.1963). The cited cases held that an act which amended a previous act must also contain the original language of the act being amended. The case is inapplicable. The “Sunset Act” did not amend Chapter 323, it repealed it.

Appellants’ sixth Point that by returning motor carriers to the common law they are being forced to violate Florida’s anti-trust statutes, is without merit and needs no discussion.

The judgment is AFFIRMED.

McCORD, J., LILES, WOODIE A. (Retired) Associate Judge, and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.

      . Chapter 76-168, Laws of Florida, as amended by Chapter 77-457, Laws of Florida.


author: SCHWARTZ, Judge. BASKIN, Judge

text:
    The STATE of Florida, Appellant, v. Benjamin Bruce THOMAS, Appellee.
    No. 80-2148.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Rehearing Denied Nov. 20, 1981.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Solomon & Mendelow and Harold Solomon, Miami Springs, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

On April 10, 1980, based upon what was admittedly probable cause to believe him guilty of an armed house burglary-rape, but without a warrant, Miami police officers went to Thomas’ home and, the trial judge found on disputed facts, arrested him inside. While there, the officers observed a hat and a bicycle which were connected with the crime. After they took the defendant to the police station, and without any claimed Miranda violation or other impropriety, Thomas confessed. Subsequently, the officers secured a search warrant and seized the hat and bicycle. On the basis of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.(1980), which was decided five days later, on April 15, 1980, the trial judge suppressed both the tangible items in question and the confession. We affirm as to the hat and bicycle, but reverse as to the confession.

Since the entry into the defendant’s home, which Payton declared to be unconstitutionally effected, was the occasion for the officers’ awareness of their existence, see, State v. Ramos, - So.2d-(Fla. 3d DCA Case no. 80-845, opinion filed, July 28, 1981), it is clear that the tangible items must be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The state argues that Payton should not control because it was decided subsequent to the entry which was then clearly authorized by the law of Florida. State v. Perez, 277 So.2d 778 (Fla.1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973). While we reject this contention, it is not for the reason assigned in Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980), cert. denied -U.S.-, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981). Accord, State v. Jennings, 396 So.2d 1231 (Fla. 4th DCA 1981); Brown v. State, 392 So.2d 280 (Fla. 1st DCA 1980). To the contrary, we thoroughly agree with Judge Pearson’s disapproving analysis of Busch in his specially concurring opinion in Williams v. State, 403 So.2d 430 (Fla. 3d DCA 1981). Indeed, we would go further and suggest that under the traditional analysis of the basis for the court-made exclusionary rule, as applied to the question in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the overruling effect of Payton should be applied only prospectively. State v. Friddle, (La.), 396 So.2d 1242 (La.1981) (Payton not retroactive); People v. Graham, 76 A.D.2d 228, 431 N.Y.S.2d 209 (1980) (same). This conclusion is bottomed upon the fact that the very reason the courts require exclusion, to discourage unlawful police activity, is not furthered if the action is not legally improper when it is undertaken. In our view, however, this approach cannot obtain in our state simply because the Florida exclusionary rule is not judicially created, but constitutionally required. Article I, Section 12, Florida Constitution (1968) specifically provides:

The right of the people to be secure in their persons, houses, papers and effects against the unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. . . . Articles or information obtained in violation of this right shall not be admissible in evidence, [emphasis supplied]

This provision leaves no room in Florida for a purely prospective application of a judicial determination that a given search or seizure is constitutionally unreasonable. Once it is decided, as by Payton, that this is the case, the Florida courts are mandated to reject any evidence thus secured. See Grubbs v. State, 373 So.2d 905 (Fla.1979) (exclusionary rule applicable in probation proceeding only because of Florida constitutional provision); see also, Odom v. State, 403 So.2d 936 (Fla. 1981) (“constitutional principle applies . . . regardless of the scope of the Fourth Amendment exclusionary rule.”)

We reach an opposite conclusion with respect to the confession because of the absence of a requisite logical connective link to the impropriety in the arrest which temporally preceded it. This issue is not controlled by Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), cited by the defendant, because, unlike those cases, Thomas’ arrest, supported as it was by probable cause, was not itself improper, and there is therefore no suggestion that it was undertaken as a subterfuge or for the purpose of securing a confession in a custodial atmosphere. Only the place of the arrest, the defendant’s home, was, Payton says, improper; it is admitted that if the officers had merely waited for Thomas to emerge, no constitutional objection could have been raised. Because the location of the arrest thus did not bear so much as a “but for” relationship to the confession, which would plainly have come about regardless of the impropriety, we hold that it was not even initially causally tainted by the Payton violation, or, in terms of the Florida Constitution, that it was not “obtained in violation” of Thomas’ right to be secure from an unreasonable seizure. It should therefore not have been suppressed. See State v. Shular, 400 So.2d 781 (Fla. 3d DCA 1981) (unlawful arrest does not require suppression of subsequent confession when taint is dissipated by intervening events); State v. Barry, 86 N.J. 80, 429 A.2d 581 (1981) (same); People v. Rogers, 52 N.Y.2d 527, 439 N.Y.S.2d 96, 421 N.E.2d 491 (1981) (same); see also, Norris v. State, 401 So.2d 865 (Fla.3d DCA 1981) (per curiam); see generally, United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979). Fruit from a healthy tree planted where a poisonous one has been removed is not inedible.

Affirmed in part, reversed in part.

BASKIN, Judge

(dissenting in part).

Although I concur in the majority opinion insofar as it recognizes the impropriety of the admission into evidence of items seized from defendant’s home by police acting without a warrant, I dissent from the ruling concerning the confession. The distinction drawn by the majority in refusing to exclude defendant Thomas’ confession strikes me as an unwarranted curtailment of the portent of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Defendant Thomas’ warrantless arrest inside his home was improper despite the presence of probable cause because the officers failed to obtain a warrant. That the officers had probable cause to obtain a warrant does not alter the fact that they did not do so. The “information” they obtained in violation of constitutional rights was as inadmissible as the “articles” they acquired. Art. I, § 12, Fla.Const. (1968). I am disturbed by the majority attitude that the officers’ unlawful conduct is of no importance. In Payton, probable cause was present; nevertheless, the United States Supreme Court clearly rejected the view that probable cause justifies a warrantless arrest in a home as it does in a public place, a view here espoused by the majority.

Because I find the confession was obtained in violation of Thomas’ right to be secure from an unreasonable seizure and that the taint of illegality spread without interruption by intervening events, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), I would affirm the trial court’s suppression of the confession as well as of the evidence.

      . His fingerprint was found at the scene of the offense.

      . Payton itself recognizes that Florida law was directly contrary to its conclusion. 445 U.S. at 575, 100 S.Ct. at 1374, 63 L.Ed.2d at 644.

      . For the same reason, it is at best highly doubtful that Florida courts are constitutionally free to adopt the theory advanced by thirteen judges of the fifth circuit in United States v. Williams, 622 F.2d 830, 840-47 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981), that evidence which is objectively determined to have been unconstitutionally and unreasonably secured may nevertheless be admitted if the officers were acting in subjective “good faith” at the time. See also, Moline v. State, 404 So.2d 826 (Fla. 1st DCA 1981); Walden v. State, 397 So .2d 368 (Fla. 1st DCA 1981).


text:
    AnnMarie AHLERS, Appellant, v. C & S EQUIPMENT, INC. and Fred Chastain, Appellees.
    No. 80-2482.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Rehearing Denied Nov. 20, 1981.

      Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellant.
    Bernard H. Butts, Jr., Hialeah, and Kenneth Ofgang, Miami, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant brought suit on a contract which provided for payment of a reasonable attorney’s fee in the event of a breach by appellees. On motion of appellees, moments before trial, the court disqualified appellant’s counsel from appearing in the trial of the cause because he would be required to appear as a witness on the matter of the attorney’s fee.

There is no conflict of interest necessitating removal where counsel conducts the trial of the case then takes the witness stand to testify solely as to the nature and value of his services. Florida Bar Code of Professional Responsibility, D. R. 5-101(B)(3).

Reversed and remanded for new trial.


text:
    Harry Irving KATZ, M.D., Appellant, v. FLORIDA STATE BOARD OF MEDICAL EXAMINERS, Appellee.
    No. TT-308.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.

      Walter R. Moon of Rush, Marshall, Berg-strom & Robinson, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., and Christopher D. Rolle, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of an order of the Florida Board of Medical Examiners denying his petition for reinstatement to the practice of medicine in the state of Florida. Two points raised by appellant merit discussion.

First, appellant argues that the reinstatement hearing was materially unfair due to the Board’s failure to promulgate rules of procedure for such hearings. We are unpersuaded by this argument as the Board had adopted the model rules of procedure for all informal and formal proceedings. See Rule 21M-18.04. Florida Administrative Code. Appellant has not shown any prejudice resulting from the Board’s failure to adopt more explicit rules. We reject appellant’s argument that Florida Statutes Section 458.331(4) requires appellant’s reinstatement because of the failure of the agency to develop guidelines for the reissuanee of a license. We view the statute as directory only and not mandatory in the sense that the absence of guidelines would automatically require the reinstatement of every applicant regardless of the reasons for or the terms and conditions of his suspension.

Second, appellant contends the order of the Board is inadequate in that it fails to set forth sufficient findings of fact or conclusions of law. We agree. The order is totally deficient in findings of fact or statements of policy supporting the denial of the reissuance of this license. An agency which has opted not to establish guidelines for a particular proceeding is required to make specific findings of fact and state the policy reasons supporting the agency action. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Thus, due to the lack of appropriate findings of fact and conclusions of law the order is reversed and the case remanded for further proceedings.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A., Associate Judge (Ret.), concur.


author: WENTWORTH, Judge.

text:
    John Randall BECK, Appellant, v. INSURANCE COMMISSIONER & TREASURER, etc., Appellees.
    No. VV-362.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.

      Harry B. Mahon of Mahon & Farley, Jacksonville, for appellant.
    Allan J. Katz, Tallahassee, for appellees.
   WENTWORTH, Judge.

Beck appeals the revocation of his insurance license. The recommended order of revocation by an assistant commissioner, serving as hearing officer, indicated that suspension and not revocation of Beck’s license would have been recommended if Beck were not serving a criminal probation:

Count I standing alone contains a number of violations of law which require mandatory revocation or suspension of Respondent’s licenses.... Taking into consideration the youth of the Respondent and Respondent’s attorney’s cooperation and efforts to expedite the proceedings, the undersigned sought to recommend the lesser of the two mandatory penalties; namely, the suspension of Respondent’s licenses and eligibility to hold the licenses. Considering the record as a whole .. . the minimum penalty should be one of the maximum period of suspension (one (1) year).... Considering Count II in conjunction with Count I, with Respondent being under a felony probation, which in the normal course of events will not expire until 1982 — the penalty of suspension would be a most impractical and ineffective one, since the maximum period of suspension that may be assessed is one (1) year under F.S. 626.641 (1) — allowing the Respondent to re-engage in the business of insurance while still under probation for felonies, [e.s.]

The recommendation and agency adoption of revocation as the proper penalty over the hearings officer’s professed preference for suspension thus appears to be based upon an assumption that the criminal probationary period precluded Beck from being licensed.

The statute provides, however, that revocation is neither automatic nor mandatory when a licensee pleads guilty to a felony. See Section 626.621(8), Florida Statutes. Similarly, the law does not require revocation and instead expressly permits suspension while a licensee serves a period of criminal probation.

Because we cannot determine the extent to which the apparently erroneous interpretation of law constrained the commission’s decision, we vacate the order of revocation and remand for a redetermination of whether Beck’s license should be suspended or revoked.

Remanded for further proceedings consistent herewith.

SHIVERS, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    O. L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1940.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Bennett H. Brummer, Public Defender and Roger W. Clark, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant’s adjudication of delinquency is reversed because the trial judge failed to conduct an adequate hearing, as required by Richardson v. State, 246 So.2d 771 (Fla. 1971).

Therefore, the adjudication of delinquency under review be and the same is hereby reversed, and the cause remanded to the trial court.

Reversed and remanded.


text:
    Salvador MARTINEZ, Appellant, v. Aurelio Macipe REYES and Maria T. Cape de Macipe, his wife, Appellees.
    No. 81-315.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Lopez & Harris and Peter M. Lopez, Miami, for appellant.
    Ronald L. Davis, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

We are asked in this appeal from a final judgment to resolve a priority contest between two judgment liens.

On April 6, 1978, appellant Martinez secured a final judgment against San Bar Enterprises, Inc. (San Bar), a Florida corporation. The judgment was assigned the official register number 78R 89360 and was recorded in Official Record Book 9996 at page 1685 of the Public Records of Dade County, Florida. On the same day and at approximately the same time, appellees obtained a judgment against San Bar which was given the official register number 78R 89359 and recorded in Official Record Book 9996 at page 1684. Appellant Martinez executed a sheriff’s levy upon the real property owned by San Bar on April 11, 1978, and subsequently received a sheriff’s deed on the property. In November 1980, appellees filed a petition to establish a lien and for other equitable relief with the circuit court, alleging that the sheriff’s levy and deed were issued subject to appellees’ lien judgment since it was recorded prior to appellant’s. On February 4, 1981, the circuit court entered a final judgment finding that appellees’ lien was superior to appellant’s and that the sheriff’s sale in 1978 did not foreclose appellees’ interest in the property. The court then approved a plan to set aside the proceeds of a planned sale of the property pending termination of all judicial labor. This appeal ensued.

In order to create a lien on real property, a certified copy of a judgment or decree must be recorded in the official records of the county where the property is located. Sec. 55.10(1), Florida Statutes; Smith v. Venus Condominium Association, Inc., 352 So.2d 1169 (Fla.1977). Since both judgments were properly recorded as required by Section 55.10(1), we next look to Section 695.11, Florida Statutes, which addresses this precise issue:

695.11 Instruments deemed to be recorded from time of filing. — All instruments which are authorized or required to be recorded in the office of the clerk of the circuit court of any county in the State of Florida, and which are to be recorded in the “Official Records” as provided for under s. 28.222, and which are filed for recording on or after the effective date of this act, shall be deemed to have been officially accepted by the said officer, and officially recorded, at the time he affixed thereon the consecutive official register numbers required under s. 28.222, and at such time shall be notice to all persons. The sequence of such official numbers shall determine the priority of recordation. An instrument bearing the lower number in the then current series of numbers shall have priority over any instrument bearing a higher number in the same series, [e.s.]

A final judgment is an instrument required to be recorded in the official records [see Sec. 28.222(3)(c)], and, as the italicized provision indicates, the sequence of official numbers determines priority of rec-ordation, subordinating the higher number to the lower. In the present case, the official register number on appellant’s judgment is 78R 89360, and on appellees’ judgment is 78R 89359. Because appellees’ judgment bears the lower number in the same series of numbers, it has priority over appellant’s judgment and the sheriff’s sale was ineffective to cut off appellees’ interest in the property. This rule may admittedly produce a harsh result where, as here, two judgments are presented for recording at the same time. Of necessity, however, there must be some manner of distinguishing among liens on the same piece of property, and our legislature has chosen the method prescribed in Section 695.11. We therefore hold that the trial court properly found appellees’ judgment lien to be superi- or to appellant’s.

Affirmed.

      . Our conclusion that the two judgments are not on an equal footing renders unnecessary a determination of appellant’s second contention which argues that if the judgments are found to have equal standing, he should take the property free and clear because he was the first to execute on the property. We also do not decide the third issue raised by appellant which requests reimbursement for amounts he paid on the mortgage of the property since this issue was not raised in the proceedings below and we are confined to the record on appeal. See e. g., Hartley v. Florida East Coast Ry. Co., 339 So.2d 630 (Fla.1976); Integrated Container Services, Inc. v. Overstreet, 375 So.2d 1146 (Fla. 3d DCA 1979); Jaruagua Enterprises, Inc. v. Dom, Inc., 339 So.2d 702 (Fla. 3d DCA 1976).


author: HENDRY, Judge.

text:
    Robert Lee GARDNER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-1466, 80-1470.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   HENDRY, Judge.

These consolidated appeals result from appellant’s jury conviction for robbery. Appellant seeks reversal of the conviction and sentence on the grounds that 1) his court-appointed counsel was ineffective in that he failed to present alibi witnesses and properly investigate the case, and 2) the trial court erred in giving the deadlocked jury an “Allen” charge over defense counsel’s objection and motion for mistrial. Ground one arises from the denial of appellant’s Rule 3.850 motion to vacate judgment following an evidentiary hearing; ground two is a direct appeal to this court.

The state has responded to each of the appellant’s points and further counters that the asserted omissions were not substantial. Appellant’s primary complaint, defense counsel’s failure to call alibi witnesses, was shown at the evidentiary hearing on appellant’s Rule 3.850 motion to be a reasonable, tactical decision that placing the thirty-eight year old appellant’s sixteen year old common-law wife, or her younger sister on the stand would have an adverse psychological impact on the jury. Defense counsel’s determination not to pursue certain avenues of investigation which he found to be irrelevant to the present case, or felt would not be fruitful, was also a matter of trial tactic and strategy not open to attack. Washington v. State, 397 So.2d 285 (Fla. 1981); Robinson v. State, 378 So.2d 1346 (Fla. 3d DCA 1980). Appellant has not alleged, nor does the record show, any actual prejudice resulting from the asserted errors of his counsel. Two eyewitnesses to the robbery positively identified the appellant as the robber on three separate occasions: at the crime scene, at a live line-up, and at trial. We find that the record clearly sustains the findings of the court below that counsel’s decisions were tactical in nature; that the testimony of the eyewitness was credible; and that the appellant received a fair trial. The record also shows that trial counsel competently and diligently represented appellant, and this representation, in our view, met the standard for effective assistance of counsel enunciated by the Florida Supreme Court in Knight v. State, 394 So.2d 997 (Fla. 1981). See also Meeks v. State, 382 So.2d 673 (Fla. 1980).

Appellant next claims that the trial court erred in giving the jury an “Allen” charge. The use of an Allen charge for deadlocked juries was recently approved by the Florida Supreme Court in Spaziano v. State, 393 So.2d 1119 (Fla. 1981); see also State v. Bryan, 290 So.2d 482 (Fla. 1974). In the present case, when the jury was unable to reach a decision after several hours of deliberation, the court gave the approved charge found in Standard Jury Instruction 2.21, specifically emphasizing that the jury was to resolve their differences only “if possible.” The court thus gave a balanced charge meeting the criteria set forth in State v. Bryan, supra. Cf. Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla. 1976) (trial judge’s remarks during voir dire examination demanding that the jury reach a verdict prejudiced defendant’s right to a hung jury).

We conclude that the defendant has failed to demonstrate prejudicial error and affirm the conviction and sentence below.

Affirmed.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


text:
    DEPARTMENT OF PROFESSIONAL REGULATION, Appellant, v. Joseph WAGNER, D. C., Appellee.
    No. WW-413.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    Rehearing Denied Nov. 20, 1981.

      Tina Hippie, Asst. Gen. Counsel, Tallahassee, for appellant.
    J. David McFadden, Daytona Beach, and Paul Watson Lambert, Tallahassee, for ap-pellee.
   PER CURIAM.

Judith Matovina filed an administrative complaint against Dr. Wagner, a chiropractor, through the Department of Professional Regulation. The complaint alleged that on July 14,1979, Matovina visited Dr. Wagner for treatment of headaches and that during the treatment Dr. Wagner repeatedly told her she was “such a baby,” and told her she was a pretty girl, referring several times to her blue eyes. The complaint further alleged that Dr. Wagner conversed about his relationship with his wife of many years, his girlfriends, and the fact that he had had a vasectomy. Matovina charged that at one point Dr. Wagner attempted to induce her to dance with him and that he kissed her on the neck and forehead during the treatment without her consent. The complaint charged Dr. Wagner with attempting to induce, engage, or attempt to engage a patient in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of a patient in violation of Sections 460.412 and 460.413(l)(w), Florida Statutes.

Dr. Wagner requested an administrative hearing. The hearing was held before a Department of Administrative Hearings hearing officer who heard the testimony of Ms. Matovina and Dr. Wagner and entered a recommended order. The hearing officer’s findings of fact included the following. Initially Ms. Matovina made an appointment for Thursday, July 12, but since she preferred not to miss work the appointment was rescheduled for Saturday, July 14. On that Saturday, after treating another patient, Dr. Wagner introduced himself and gave Matovina a pamphlet on the treatment of headaches by chiropractors and a form to fill out with information on her personal background and symptoms. At the beginning of the examination Dr. Wagner asked her some questions about her symptoms and her personal life and gave her a gown, instructing her to remove her clothing. Dr. Wagner then left the room. Ms. Matovina removed some of her clothing and put the gown on, leaving her slacks and shoes on. During the examination Dr. Wagner conversed about his relationship with his wife, his girlfriends, and the fact that he had had a vasectomy. Matovina had never before been to a chiropractor and she expressed her concern, to which Dr. Wagner remarked that she was “such a baby.” Dr. Wagner examined her eyes, telling her she had pretty blue eyes and that his girlfriends had brown eyes. When Matovina asked where the doctor’s receptionist was, Dr. Wagner said that he did not have a receptionist on Saturdays when he scheduled pretty patients. During one manipulation in which the patient stands against the wall with the doctor’s arm behind her, Dr. Wagner said “they are playing our song” in response to the office music. At one point Dr. Wagner moved his hand toward Ms. Matovina’s breast and brushed his hand across her breast. Matovina said several times during the examination that she had better leave, but Dr. Wagner repeatedly suggested one more therapy that might help. The hearing officer further found that Dr. Wagner kissed Ms. Matovina twice and that she finally insisted on dressing and leaving; when she came out to pay her bill Dr. Wagner acted as if nothing had happened. Ms. Matovina insisted on paying for the treatment at that time and left. The following week, Dr. Wagner’s office contacted Ms. Matovina in order to schedule further appointments which she refused.

In his conclusions of law, the hearing officer set forth the applicable statutes, stating that a violation of Section 460.412 would constitute a violation of Section 460.-413(l)(w) and justify disciplinary action under Section 460.413(2). The hearing officer concluded that Dr. Wagner’s conduct constituted sexual misconduct in the practice of chiropractic in that he had attempted to engage a patient in sexual activity outside the scope of generally accepted examination or treatment. The hearing officer stated that the resolution of the case required a credibility choice between Ms. Matovina and Dr. Wagner and that, while he recognized that neither witness’s testimony was corroborated by other evidence, considering the demeanor of the witnesses at the final hearing and their possible motivations to give false testimony, he chose to accept Ms. Matovina’s testimony. Further, the hearing officer concluded that some of the treatments which Ms. Matovina construed as having sexual overtones were legitimate. Other chiropractors testified, for example, that they used the positioning against the wall which is similar to a dancing position to treat headaches. The hearing officer further concluded, however, that because of the tenor of Dr. Wagner’s conversation, the legitimate manipulations took on definite sexual connotations. In light of this, the fact that Dr. Wagner kissed the patient twice and brushed his hand across her breast could only be taken as an effort to use a chiropractor’s position to seduce a patient. The hearing officer recommended that Dr. Wagner’s license be suspended for 6 months and that upon restoration of the license, he be placed on probation for 18 months during which a third party would have to be present during the treatment of female patients.

Dr. Wagner filed exceptions to the recommended order and the Board of Chiropractic reviewed the recommended order. In its cursory order, the Board adopted the hearing officer’s findings of fact, but completely rejected the conclusions of law, stating that the findings of fact did not establish as a matter of law sexual misconduct through the misuse of the chiropractor-patient relationship. No further reasoning was given for rejecting the conclusions of law. The Board determined that no action should be taken against Dr. Wagner and the Department of Professional Regulation appealed.

The transcript of the hearing before the Board of Chiropractic reflects some confusion on the part of the Board members as to their responsibilities under the Administrative Procedures Act in reviewing a hearing officer’s recommended order. The transcript indicates that the Board reassessed the issue of credibility of the two primary witnesses and decided the question in Dr. Wagner’s favor. It was apparently based on that reinterpretation of the facts that the Board rejected the hearing officer’s conclusions of law, even though the Board expressly stated in its order that it accepted the hearing officer’s findings of fact. Ap-pellee argues that Dr. Wagner should not suffer for the Board’s failure to construct an order the form of which complies with chapter 120. In fact, appellee asserts that the Board actually rejected the hearing officer’s findings of fact and argues that certain of the hearing officer’s findings of fact were actually conclusions of law, properly rejected by the board.

Contrary to appellee’s argument, even if the Board had stated that it rejected the hearing officer’s findings of fact, it could not have done so without determining from a complete review of the record that those findings were not based upon competent substantial evidence. Section 120.-57(l)(b)9 Florida Statutes. The hearing officer’s findings of fact are supported by competent substantial evidence in the record. Further, since the crucial findings were based on the hearing officer’s determination of credibility of the respective witnesses considering their demeanor, rather than on a determination of the facts which approached an opinion on agency policy, the Board was not in a good position to reevaluate those particular findings of fact. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). An agency may reject a hearing officer’s conclusions of law; however, given that the findings of fact were or should have been accepted in the instant case and that those findings are supported in the record, the Board could not logically reach a conclusion contrary to that of the hearing officer as to the legal effect of Dr. Wagner’s conduct. The facts as found by the hearing officer clearly constituted a violation of Sections 460.412 and 460.413(l)(w). Cf. Cenac v. Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981); Wong v. Career Service Commission, 371 So.2d 530 (Fla. 1st DCA 1979).

We do not find persuasive appellee’s argument that some of the hearing officer’s findings of fact were improperly labeled and were actually conclusions of law which the Board could reject. Even isolating those findings of fact which might be viewed as conclusions of law, the remaining facts clearly indicate misuse of the chiropractor-patient relationship in the manner found by the hearing officer.

The final order of the Board of Chiropractic is REVERSED and REMANDED with instructions to reinstate the hearing officer’s conclusions of law and determine an appropriate penalty.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: COBB, Judge.

text:
    Milton A. VAN BEVER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1162.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    Milton A. Van Bever, in pro. per.
    No appearance for appellee.
   COBB, Judge.

Without conducting an evidentiary hearing, and without attaching any portion of the case file or record, the court below denied Van Bever’s motion to set aside his plea and sentence. The issue in this case is whether Van Bever alleged a prima facie ground for relief.

Because no portion of the record was attached to its order of denial, the trial court impliedly found the motion legally insufficient on its face, for when the motion is facially sufficient, the .trial court must either attach that portion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing. Meeks v. State, 382 So.2d 673 (Fla. 1980); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978). Though his motion lacks the artfulness of an attorney’s hand, Van Bever alleges two prima facie grounds for relief from the plea and sentence. “Ground Two” alleges that at the time of the plea, Van Bever’s counsel informed him that he was not “completely ready” for trial, the implication being that Van Bever involuntarily pleaded guilty out of fear that his attorney would be unprepared at a trial. The trial court could have adequately rebutted this allegation of involuntariness by attaching a portion of the record that indicated Van Bever was satisfied with the work of his attorney. “Ground Three” establishes a second prima facie basis for relief: according to Van Bever, and the record before this court does not indicate otherwise, he was sentenced on a count that was nolle prossed by the state. Such sentence would be void and subject to collateral attack, even though not raised on appeal. Van Bever’s two remaining allegations do not establish prima facie grounds for relief.

This cause is remanded to the court below so that it may either (1) attach that portion of the case file and record which conclusively refutes Van Bever’s prima facie allegations; or (b) conduct an evidentiary hearing and, then, either grant or deny the requested relief.

REMANDED WITH INSTRUCTIONS.

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

      . The motion was made pursuant to Florida Rule of Criminal Procedure 3.850.

      . Additionally, it should be noted that in any order which summarily denies relief, the trial court should set forth the basis of its ruling with sufficient specificity to facilitate appellate review. See Committee Note, Fla.R.Cr.P. 3.850. By failing to set forth the basis for its denial, the trial court departed from the spirit of the rule and hindered appellate review. This deficiency is not unique to the present case. See, e.g., Collins v. State, 382 So.2d 418 (Fla. 5th DCA 1980). Compare Brown v. State, 404 So.2d 157 (Fla. 5th DCA 1981) [Affirmed trial court’s denial of relief where grounds were explicitly enumerated].


author: ERVIN, Judge.

text:
    FOUR QUARTERS HABITAT, INC., and Aetna Casualty and Surety Company, Appellants, v. Brian MILLER, Appellee.
    No. ZZ-109.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.

      Lewis M. Ress and Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, North Miami, for appellants.
    Eugene E. Williams and Mark L. Zientz of Williams & Zientz, Coral Gables, for ap-pellee.
   ERVIN, Judge.

In this workers’ compensation action, the employer/carrier (e/c) appeals from the order of the deputy commissioner (D.C.) awarding claimant (1) temporary total disability (TTD) benefits from August 13, 1979 (the date of the accident), through July 11, 1980, the date determined to be that of maximum medical improvement (MMI), at a compensation rate of $190.87 per week based on an average weekly wage (AWW) of $286.15, (2) attorney’s fees and (3) penalties. The appellant raises four points on appeal. We agree that all of the points require either reversal or remand.

The first issue asks whether the D.C. erred in awarding claimant TTD benefits beyond the date the e/e stipulated claimant was entitled to TTD benefits, or March 5, 1980. The record establishes that claimant’s treating physician, Dr. Mims, on February 19, 1980, advised claimant that he could then perform light work. The record shows that the claimant, following this examination, made only one attempt to seek work with his former employer by placing a call to him in April, 1980, and asking if he could resume employment once he was able to work. Yet he never tested his employa-bility by attempting to resume his former work, or by seeking other employment. It has been repeatedly held that it is error to award TTD benefits where there is either no medical evidence of claimant’s inability to work, or no conscientious effort is made by the claimant to return to work. Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (March 23, 1979); Mendivil v. Tampa Envelope Manufacturing Company, 233 So.2d 5 (Fla. 1970); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Tallahassee Coca-Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla.1st DCA 1981); Stewart-Decatur Security v. Kropp, 396 So.2d 256 (Fla.lst DCA 1981); McDonnell Douglas v. Holliday, 397 So.2d 366 (Fla. 1st DCA 1981). In Walter Glades Condominium v. Morris, supra, we reversed an order awarding TTD benefits on a record showing that claimant, during the period of asserted disability, made one effort to return to work, and was told by her employer to come back when she was well. We held that in the absence of medical evidence relating to her inability to work, claimant was obliged to test her ability to work, and that her testimony stating only that she was unable to work did not meet the requirement of an adequate work search.

Although Dr. Mims testified that the claimant should seek only light work, those directions did not excuse the claimant from the rule that he was obliged to search for work within his physical limitations. See T.G. Lee Foods, Inc. v. Walker, 395 So.2d 252 (Fla. 1st DCA 1981); Stewart-Decatur Security v. Kropp, supra. Since there was no such search, the award is therefore reversed and the case is remanded with directions that an award of TTD be entered consistent with the time frame stipulated by the e/c.

Appellant next argues that the D.C. erred in computing claimant’s AWW by selecting the method provided in Section 440.-14(l)(a), Florida Statutes (1979), instead of subsection (b), pertaining to the similar employee method of computation, and that the D.C. erred also in accepting claimant’s testimony over the e/c’s representative.

Claimant testified that for ten weeks pri- or to his employment by Four Quarters Habitat, he had worked for another employer at a job similar to his later occupation with Four Quarters at $7.50 per hour for a 40-hour work week. After leaving that employment, he then worked for three-and-a-half weeks as a carpenter with Four Quarters at a rate of $6.00 per hour for 40-hours per week. The claimant, however, offered no testimony of the wages he actually received from either employer. In determining the AWW, the deputy, following the provisions of Section 440.14(l)(a), took a weighted, combined average of claimant’s presumed income from the two employers for the 13-week period preceding the accident, thereby arriving at the figure of $286.15 per week. In so doing, it was necessary for him to reject the testimony of the employer’s representative that claimant had worked for less than one full day as being unreliable because it conflicted with the employer’s time records revealing that claimant had actually worked a total of ISV2 hours during the week in which the injury occurred, as well as to reject the employer’s evidence relating to the similar employee method. Such evidence, consisting of payroll records of three employees who allegedly performed similar labors, was discarded because records of two of the employees reflected that they did not work 90% of the requisite statutory period, while the earnings of the third employee were not accepted because he was not paid the same hourly wage rate as the claimant.

Although the D.C. unquestionably has the informed discretion to reject the employer’s evidence and accept that of claimant’s, nevertheless, claimant did not offer any testimony of the actual wages he earned from the employer. As a consequence, the D.C. had no basis for applying the wage-averaging method found in subsection (l)(a), requiring that the AWW “shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks.” (Emphasis supplied)

The similar employee method described in subsection (l)(b) is also inapplicable because the record establishes that claimant had worked in the same type of employment for more than 13 weeks preceding the injury. See Whittle v. Whittle & Sons Janitor Service, 395 So.2d 304 (Pla. 1st DCA 1981). The only subsection of the statute which could have conceivably applied was subsection (4), relating to the full-time weekly wages of an injured employee as established by the contract of employment. Cf. Simpkins v. Watson, 397 So.2d 432 (Fla. 1st DCA 1981). Therefore the D.C. should have only used the contract of employment method.

Appellant next argues that the D.C. incorrectly assessed a reasonable attorney fee in favor of claimant’s counsel since the new statute, Section 440.34(2), Florida Statutes (1979), permits fees in only the following situations: (a) in cases where the claimant asserts a claim for medical benefits only, (b) in cases where the deputy makes a specific finding that the e/c acted in bad faith, and (c) in cases where the e/c denies that an injury occurred for which compensation benefits are payable and the claimant prevails on the issue of compensability.

We agree that there is no statutory basis on which an attorney fee could have been ordered. Sub-paragraph (a) is not applicable to the facts before us because the claim requested compensation benefits in addition to medical benefits, nor is sub-paragraph (b) applicable because the D.C. made no specific finding of bad faith, and finally sub-paragraph (c) is inapplicable because the e/c did not deny that the claimant suffered a compensable injury, but controverted only the right to TTD benefits after March 5, 1980. Once an e/c admits an accident and pays some disability benefits, but denies that others are due, an attorney’s fee is not awardable under § 440.-34(2)(c), Florida Statutes (1979). Ardmore Farms, Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981); Walt Disney World Company v. May, 397 So.2d 1003 (Fla. 1st DCA 1981). But cf., Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), permitting attorney’s fees where the employer denied that catastrophic loss occurred.

It should be noted that Dolphin construed the e/c’s controversion of the claim for catastrophic loss, provided in Section 440.-15(2)(b), Florida Statutes (1979), as a denial of a catastrophic injury, thereby authorizing an award of attorney’s fees pursuant to Section 440.34(2)(c). It should also be observed that the Dolphin court cautioned that its decision should not be construed as permitting the assessment of fees in those instances in which the e/c admits the com-pensability of the injury, but contests only a claim for benefits incidental to the injury, such as the amount of the AWW.

Appellant finally urges that the D.C. erred in imposing 10% statutory penalties on all unpaid compensation benefits which were not paid when due. The D.C.’s order does not reveal why a penalty was imposed. Moreover, there is nothing in the record showing that the claim had been controverted by the employer within 21 days, as required by Section 440.20(6); however, in that portion of the order awarding attorney’s fees, it was stated that the e/c controverted the claim for additional benefits. It is true that the e/c carries the burden as to whether it has sufficiently controverted a claim. See G & L Motor Corp. v. Taylor, 182 So.2d 609 (Fla. 1966). Nevertheless, the D.C. should not impose a penalty if the employer has a legitimate excuse for not controverting. See Section 440.20(7), and Burnup & Sims, Inc. v. Cohran, IRC Order 2-2950 (April 21, 1976). Finally, the D.C. has the same obligation to state the ultimate facts and conclusions supporting the imposition of a penalty as he has in regard to any other award of benefits. See Rayzor v. Mobley’s Remodeling, IRC Order 2-3351 (February 14, 1978).

Therefore, on remand, the D.C. should clarify his order by stating explicitly whether the e/e sufficiently controverted the claim, or, if the claim was not controverted within the requisite statutory time, whether the employer had a valid excuse for not controverting it within 21 days after the e/c had acquired knowledge of the alleged injury.

To conclude, the award of TTD benefits beyond March 5, 1980, or the date of the e/c’s stipulation, is reversed, as is the award of reasonable attorney’s fees to claimant’s attorney. Both the method of computing the AWW on which the amount of TTD benefits was determined, and the award of penalties is reversed, and they are remanded for further proceedings consistent with our opinion.

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

      . This was the date one of the examining physicians gave as the date that claimant was then not only able to return to work, but had also previously been able to return to work.

      . Providing generally that the AWW shall be one-thirteenth of the total amount of wages earned in the employment for the same or another employer during substantially the whole of the 13 weeks immediately preceding the injury.

      .Providing that if the injured employee shall not have worked in such employment for 13 weeks preceding the injury, the wages of a similar employee in the same employment during the requisite time shall be used in determining the AWW.


text:
    Emanuel McMULLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1972.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1981.
    Bennett H. Brummer, Public Defender and Lawrence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant’s motion for rehearing and further review of the record in this cause, we withdraw the decision filed June 30, 1981, and substitute the following opinion in lieu thereof.

Emanuel McMullen was charged in a single information with twenty counts of robbery arising from five separate criminal episodes. The five robberies, four of which involved well known fast food restaurants, all occurred between December 18,1978 and December 27, 1978. Prior to trial the court denied McMullen’s motion to sever the offenses. Following his acquittal on six of the counts and his conviction on the remaining counts, McMullen filed this appeal challenging the denial of his motion to sever. We reverse.

Rule 3.150 of the Florida Rules of Criminal Procedure, entitled “Joinder of Offenses and Defendants,” provides in pertinent part:

(a) Joinder of Offenses. Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two or more connected acts or transactions, [e. s.]

We find that the five separate robberies charged in the information were misjoined since the offenses were not “based on the same act or transaction. . .” in either an episodic or temporal sense. See Paul v. State, 385 So.2d 1371 (Fla.1980), partially adopting the dissenting opinion of Judge Smith in Paul v. State, 365 So.2d 1063 (Fla.1st DCA 1979). The similarity in circumstances resulting from the fact that the robberies all took place in the northwest quadrant of Dade County within a nine day period, and that four of the five robberies involved fast food restaurants, does not warrant joinder under Rule 3.150(a). See Macklin v. State, 395 So.2d 1219 (Fla.3d DCA 1981) (joinder of two separate criminal episodes involving taxicab holdups five days apart at locations less than one block apart where both cab drivers were dispatched to the area by a prior phone call was improper).

Where offenses are improperly joined in one information, severance is mandatory upon timely motion, Fla.R.Crim.P. 3.152(a)(1), since prejudice is conclusively presumed. Macklin v. State, supra. Inasmuch as McMullen timely moved to disjoin the five robberies, severance was required.

Our determination that McMullen must be retried separately for each of the offenses makes it unnecessary to consider the other point on appeal which argues a denial of due process of law because the trial court limited defense counsel to a total of thirty minutes on closing argument for all five robberies.

Reversed and remanded for further proceedings not inconsistent with this opinion.


author: FERGUSON, Judge. SCHWARTZ, Judge

text:
    Causey HARRELL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1236.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Bennett H. Brummer, Public Defender, and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Steven R. Jacob, Asst. Atty. Gen., and Joseph Corey, Legal Intern, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant Causey Harrell was indicted for first degree murder of his former wife, Vivian Harrell, was adjudicated guilty of manslaughter and sentenced to twelve years imprisonment. The sole issue raised on appeal from the conviction and sentence is whether the trial court committed reversible error in denying Harrell’s motions for mistrial where inadmissible evidence was in view when the jury entered the courtroom and the evidence remained in court during the trial. We find no reversible error and affirm.

The background facts are summarized as follows. Causey and Vivian Harrell were divorced in June of 1979. On July 18, 1979 Vivian Harrell was found dead in a road. She had been shot three times, once in the neck, once in the thigh and once in the toe. In a taped statement entered into evidence, Harrell admitted shooting Vivian but claimed that the shooting was an accident. According to Harrell, he and Vivian got into Harrell’s van about 1:30 A.M. on July 18, 1979 for the purpose of driving to a 7-Eleven store. Harrell claimed he and Vivian started to argue and that Vivian picked up a .32 revolver which Harrell kept on the floor of the van between the swivel seats. Vivian took the gun from its pouch. Harrell claimed that while still driving the van, he grabbed for the gun and a struggle ensued. The gun fired. Vivian opened the door and either fell or jumped from the moving van. Harrell further stated that he then stopped the van, got out, went to the victim, didn’t hear her say anything, got back into the van, threw the gun out of the window and went home without knowing whether Vivian was dead or alive.

Harrell’s statement forms the basis of his defense of self-defense. There were no witnesses. There was no mark in the van from any projectiles fired by a gun, nor was there any stipling or residue powder on the body or clothing of Vivian which would, according to the expert testimony, indicate that she had been shot at a close range of approximately twelve to eighteen inches.

The day before the trial, defense counsel asked that six guns which had been taken legally from Harrell’s residence but did not include the murder weapon be removed from display in the courtroom prior to the seating of the jury. The trial court ordered the guns removed but the guns were still in view when the jury entered the courtroom. Defendant moved for a mistrial on the grounds that the jury’s exposure to the guns had the prejudicial effect of portraying Harrell as a gun monger and destroying his affirmative defense of accidental shooting. Defendant renewed his motion for mistrial twice more during the trial, and, in addition, after the court granted defendant’s motion to exclude admission of the guns into evidence and at the close of the state’s case. Each time the court denied the motion.

On appeal the burden is on appellant to demonstrate reversible error. In this case appellant Harrell may meet that burden in one of two ways. First, Harrell may prove that the error is a violation of rights guaranteed by the United States Constitution thereby shifting the burden to the state to prove the error harmless under the reasonable doubt standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and interpreted by lower courts to require a showing that absent the so-determined unconstitutional effect, the remaining evidence is overwhelming. See, e. g., Jones v. State, 332 So.2d 615 (Fla.1976); Ackerman v. State, 372 So.2d 215 (Fla. 1st DCA 1979). See also Germany v. Estelle, 639 F.2d 1301 (5th Cir. 1981). Second, Harrell may prove that the error injuriously affected a substantial right protected by state law, also shifting the burden to the State. Section 924.33, Fla.Stat. (1979). See, e. g., White v. State, 356 So.2d 56 (Fla. 4th DCA 1978); D’Agostino v. State, 334 So.2d 99 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1080 (Fla.1977).

Under the facts of this case, we find that appellant has failed to demonstrate federal constitutional error. There is no violation of the Fourth Amendment right to be free from illegal searches and seizures. There is no violation of a Fifth Amendment right to silence. There is no violation of a Sixth Amendment right to counsel or confrontation of witnesses. It is not clear that the presence of the guns had any effect upon the conduct of the defense or presentation of witnesses. Testimony that Harrell owns several guns was elicited from two different witnesses on direct examination and from a third witness, an officer who testified that he had removed the guns from Harrell’s residence subsequent to the shooting. The opportunity for cross-examination regarding the guns was available to the defendant.

After reviewing the facts as set forth in the record, we also find no violation under the due process clauses. The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusation. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The constitutional guarantees to due process are not a constitutional guarantee to a perfect trial. It is not enough that the action of the trial court was wrong or even universally condemned. Harrell must establish that a right guaranteed by the Fourteenth Amendment was violated and finding a violation under the due process clause requires that the error “so infected” the entire trial that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 374 (1973). Compare Chambers v. Mississippi, supra (impact of refusal to allow testimony of third person and refusal to permit cross-examination of adverse witness had cumulative effect amounting to violation of due process) with United States v. Ford, 632 F.2d 1354, 1381 n. 29 (9th Cir. 1980) (declining to apply the constitutional standard of Chapman to non-constitutional question of prosecutorial misconduct). Here the only error cited by appellant is the failure to remove irrelevant and immaterial evidence — guns belonging to defendant — from jury view. The same information, ownership of several guns, was elicited on direct examination. That the display had any effect upon the jury rejecting the first-degree and second-degree murder charges or rejecting the charge on justifiable use of force is unlikely at best. In our view, the testimony of Harrell’s children, the testimony as to the absence of any sign of struggle or sign of a gun having been shot inside the van, the absence of any stipling effect or powder residue on the victim’s clothing or body, the admission of Harrell that he left the victim lying in the road with no attempt to give or seek aid and that he threw away the gun after shooting Vivian constitute evidence sufficient beyond a reasonable doubt for a jury to find Harrell guilty of culpable negligence resulting in the death of Vivian. The only issue before the jury to be determined on the testimony of defendant and his children along with the physical evidence, was whether Vivian Harrell’s death was accidental as contended.

Under these circumstances we find that the display of the guns had neither the impact of denying a constitutional right as enunciated in Chambers v. Mississippi, supra, nor infected the entire trial with prejudice so as to result in an unfair trial. Cupp v. Naughten, supra. We hold, therefore, that Harrell has failed to prove violation of a constitutional right of federal due process.

For the same reasons that we find no violation of the federal right to due process, we also find no violation of a substantial right protected by state law. We do find, consistent with Florida law, that Harrell has also failed to prove reversible error under Section 924.33, Fla.Stat. (1979). We find no well-established Florida principles of judicial review in the cases cited by the dissent or in any other Florida or federal cases which permit an appellate court to find harmful error just because an error was committed below. Absent proof of actual reliance by the jury, compare Gibson v. Clanon, 633 F.2d 851 (9th Cir. 1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981) (affidavit of jurors revealed jurors looked up incidence of AB blood-type after court ruled evidence of AB incidence inadmissible and looked up morphine dosage in medical encyclopedia) with Ezzard v. State, 155 Ga.App. 594, 271 S.E.2d 728 (1980) (no reversible error in display of exhibits not introduced into evidence when exhibits were at end of prosecutor’s table farthest from jury and transcript disclosed no effort to call attention to the items . . . beyond that normal to a trial), or absent the presence of constitutional error, cf. Nowlin v. State, 346 So.2d 1020 (Fla.1977) (placing burden on state and applying standard of “reasonable possibility that error may have contributed to accused’s conviction to constitutional error), the standard of trial fairness applies, see, e. g., United States v. Ford, supra, and the burden remains on the defendant to prove the error resulted in an unfair trial, § 924.33, Fla.Stat. (1979); cf. State v. Williams, 198 So.2d 21 (Fla.1967) (error in displaying unintroduced and incriminating evidence not fundamental error); Connor v. State, 106 So.2d 416 (Fla. 1958) (no prejudicial error where defendant’s confession contained same evidence as that erroneously exhibited); Wells v. State, 256 So.2d 580 (Fla. 3d DCA 1972) (no reversible error in display of firearms not admitted into evidence); DeLaine v. State, 230 So.2d 168 (Fla. 2d DCA 1970) (no reversible error in display of clothing and bedding which did not connect defendant with scene of crime, did not have gruesome quality or appearance, and did not tend to prove crime more serious than charged). We note that in Alexander v. State, 288 So.2d 538 (Fla. 3d DCA 1974), the court based its opinion on the belief the defendant was deprived of a constitutional right to confront witnesses and that the Alexander opinion has not been followed, see G. E. G. v. State, 389 So.2d 325, 326 (Fla. 5th DCA 1980). In State v. Williams, 198 So.2d 21 (Fla.1967), the Florida Supreme Court found that it could not review the issue of display of unadmitted evidence because such display was not fundamental error. The lower court case cited by the dissent is rightfully concerned with traditional rules of fair play. In that case, once the confession of the defendant was (properly) held inadmissible, the unadmitted evidence was the only evidence linking the defendant to the scene of the crime. In Harrell’s case, it is uncontested that Harrell shot and killed Vivian.

While we strongly condemn what in this case is tantamount to prosecutorial misconduct, we are not, on these facts, compelled to reverse the jury verdict of guilt.

Affirmed.

SCHWARTZ, Judge

(dissenting).

Applying well-established Florida principles of judicial review, I cannot say that the acknowledgedly and blatantly erroneous display of the inadmissible and unadmitted firearms before the jury did not affect its verdict and was therefore merely harmless error. Williams v. State, 188 So.2d 320, 334 (Fla. 2d DCA 1966), modified on other grounds, 198 So.2d 21 (Fla.1967), and Alexander v. State, 288 So.2d 538 (Fla. 3d DCA 1974), among many other decisions, strongly indicate to the contrary. I would therefore reverse for a new trial.

      . The display of inadmissible evidence is error in violation of evidentiary procedures or court rule.

      . Chapman, supra, involves an erroneous evi-dentiary ruling. If federal constitutional error can be proved, then we assume that the reasonable doubt standard of Chapman, supra applies to cases such as this where the evidentiary ruling was correct, but where the objects of that ruling remained in court.

      .§ 924.33, Fla.Stat. (1979) provides:
      No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.

      . The due process clause does not guarantee that any trial error or irregularity amounts to constitutional error and until constitutional error is found, the burden remains upon the defendant to prove the error harmful. The defendant must prove whether under the entire circumstances of the trial that the error complained of contributed to an unfair conviction — a violation of due process.


text:
    Jesus LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1425.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Where the parties’ attorneys and the judge agree, the trial court may decide the issue of competency on the basis of written reports. Fowler v. State, 255 So.2d 513 (Fla.1971); Peeples v. State, 404 So.2d 774, (Fla. 3d DCA 1981).