author: BOARDMAN, Judge.

text:
    Gary Todd DYDEK, Appellant, v. STATE of Florida, Appellee.
    No. 80-1083.
    District Court of Appeal of Florida, Second District.
    June 17, 1981.
    Rehearing Denied July 24, 1981.

      Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Gary Todd Dydek appeals judgments and sentences for possession of cocaine and drug paraphernalia. We affirm the judgment and sentence for possession of cocaine. However, we hold that appellant did not possess the item alleged to be drug paraphernalia with the intent that it be “used for unlawfully administering any controlled substance,” as required by section 893.-13(3)(a)4, Florida Statutes (1979), and we therefore reverse the judgment and sentence for possession of drug paraphernalia.

Appellant moved to suppress the evidence against him in the trial court, relying in the motion on facts as stated in the deposition of Richard Berry, the arresting officer. At the hearing on the motion, Officer Berry also testified concerning his arrest of appellant. When the trial court denied the motion to suppress, appellant pled nolo conten-dere to both charges, expressly reserving the right to appeal the denial of his motion to suppress. At that time appellant stipulated that the state could prove a prima facie case on the basis of the evidence before the trial court at the hearing on the motion to suppress. The trial court accepted the nolo pleas, adjudicated appellant guilty of both charged offenses, and sentenced him to eighteen months in prison. This appeal followed timely.

On this appeal appellant raises two issues. We find no merit to the first point, which challenges the denial of the motion to suppress, and therefore affirm the judgment and sentence for possession of cocaine.

Appellant’s second point is that the information charging possession of drug paraphernalia was insufficient to charge a crime. We disagree with appellant’s contention as stated, but we do hold that the evidence is insufficient to support a conviction of the crime charged; the judgment must therefore be reversed.

The evidence concerning the item alleged to be drug paraphernalia, a gold cigarette case, was that the arresting officer came upon it in the course of a search of appellant’s pockets. Inside the case the officer found a spoon, two pipes, and a razor blade. A white powdery substance was also found on these items. Other than appellant’s admission of ownership of these items (plus a small bottle containing cocaine, which formed the basis of the cocaine possession charge, and a knife), there was no other evidence concerning the alleged paraphernalia.

The information charged that appellant on February 22, 1980,

did unlawfully possess and have in his control a device, contrivance, instrument or paraphernalia with the intent then and there that said device, contrivance, instrument or paraphernalia be used for unlawfully smoking or using a substance controlled by Chapter 893 of Florida Statutes, said device, contrivance, instrument or paraphernalia being a gold cigarette case, a more particular description of which is to the State Attorney unknown

Section 893.13(3)(a), Florida Statutes (1979), provides:

It is unlawful for any person:

4. To possess, have under his control, or deliver any device, contrivance, instrument, or paraphernalia with the intent that said device, contrivance, instrument, or paraphernalia be used for unlawfully administering any controlled substance.

Although the information does not track the statute word for word, the language used is sufficient to charge a crime under section 893.13(3)(a)4. The problem is that the evidence clearly indicates, and there is not even any speculation to the contrary, that the cigarette case in question was used only as a container in which to carry or store certain instruments (one or more of which may themselves have been properly classified as paraphernalia); there is absolutely no evidence that it could even possibly be used to administer a controlled substance. Thus, there was insufficient evidence here to establish a prima facie case of possession of drug paraphernalia; appellant’s possession of the cigarette case simply was not a crime under the law then in effect.

Prior to accepting a guilty or nolo contendere plea, the trial court must receive in the record factual information to establish the offense to which the defendant has entered his plea. Fla.R.Crim.P. 3.172(a); see Williams v. State, 316 So.2d 267 (Fla. 1975); Waugh v. State, 388 So.2d 253 (Fla.2d DCA 1980). Notwithstanding defense counsel’s stipulation to a factual basis, appellant could not have been convicted of possession of drug paraphernalia on the facts before the trial court, incorporated by reference in that stipulation, and the trial court therefore erred in accepting appellant’s nolo plea to this charge. Waugh v. State, supra.

Although appellant did not raise this precise issue either in the trial court or on this appeal, an appellate court will always consider a fundamental error that is apparent on the face of the record. Wyche v. State, 178 So.2d 875 (Fla.2d DCA 1965), appeal dismissed, 188 So.2d 310 (Fla. 1966). Fundamental error has been defined as error which goes to the foundation of the ease or to the merits of the cause of action. Sanford v. Rubin, 231 So.2d 134 (Fla. 1970). We can think of no error more fundamental than the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged.

Accordingly, appellant’s judgment and sentence for possession of drug paraphernalia is REVERSED. The judgment and sentence for possession of cocaine, however, is AFFIRMED.

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

      . Section 893.145, Florida Statutes (Supp. 1980), effective October 1, 1980, comprehensively defines drug paraphernalia, and this definition includes all implements used or intended for use in storing or containing a controlled substance. Were this statute applicable here, appellant’s cigarette case might fall within the definition of drug paraphernalia. Nevertheless, we are required to apply to appellant the law in effect at the time of the incident out of which the charge arose.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In Re: The Matter of Lee Ann BURGESS, Administrator of Tourism Development, Division of Tourism, Florida Department of Commerce, Appellant, v. DEPARTMENT OF COMMERCE, State of Florida, and Department of Administration, State of Florida, Appellees.
    No. UU-164.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Rehearing Denied Aug. 3, 1981.
    Edward S. Jaffry and Van P. Russell, of Horne, Rhodes, Jaffry, Home & Carrouth, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Don W. Davis, General Counsel, Florida Dept, of Commerce, and Samantha Boge, Asst. General Counsel, Dept, of Administration, Tallahassee, for appellees.
   PER CURIAM.

Burgess appeals a final administrative order of the Department of Commerce (DOC) which denied her petition for a formal administrative hearing filed with DOC. § 120.57(1), Fla.Stat. (1979). We hold that Burgess is entitled to a hearing and reverse.

In December, 1979, DOC sought approval from the Department of Administration (DOA) to exempt from the Career Service system Burgess’ position as Administrator of Tourism Development. Subsequently, DOA approved the position as exempt. DOC notified Burgess of the exemption, giving her the choice of continuing in the position without the protection of Career Service or continuing in the Career Service in another position. Burgess responded by filing a petition for formal administrative hearing before DOC, naming DOC and DOA as respondents. We consider the pertinent allegations to be that the exemption procedure violated § 110.205(2)(h), Fla.Stat. (1979), because Burgess’ position was allegedly not “a policy-making position” which is permitted to be designated exempt under the statute. DOC, in denying the petition, stated that there was no issue of disputed material fact and that any relief was available only on appeal to the Career Service Commission (CSC), § 110.305, Fla. Stat. (1979). Burgess appealed to the CSC and, meanwhile, she was treated as having opted for a Career Service position. Because there were no positions available, she was laid off. This layoff was the subject of a second appeal to the CSC. Subsequently, the CSC declined to hear her first appeal, although her layoff appeal was accepted.

DOC urges that Burgess is not entitled to a § 120.57 hearing because its authority to designate up to ten policy-making positions as exempt from the Career Service is totally discretionary. We disagree. The statute sets forth a standard that only positions which are policy-making may be exempted. Nonpolicy-making positions may not be designated exempt.

DOC also urges that no substantial interest of Burgess is affected by the acts of DOC because the exemption is not effective until approved by DOA. DOA asserts it is DOC which acts to exempt the position in question, urging DOA’s approval signifies just a step before the exemption becomes effective. DOA admitted at oral argument that its approval of exempt positions was routine when it concerned higher level positions. The record shows that the designation request contained no information showing that the position was a policy-making one. Under the facts presented in this case, we conclude that it was DOC which essentially took final agency action in this matter.

DOC next contends Burgess has a vested right only to a class of positions and not to her particular position as Administrator of Tourism Development. DOA agrees, adding that there is no constitutional right to employment and that no interest exists unless Florida law gives rise to such a substantive interest. The respondents miss the point: Burgess may be only lawfully deprived of any particular position. Here, she alleges, successfully enough to require a hearing, that DOC and DOA acted in violation of the statutory requirements for designating her position exempt. Article III, Section 14, of the Florida Constitution provides that the legislature shall except from the civil service only those expressly exempted by law. Section 110.205(2)(h), Florida Statutes (1979), implementing this directive, lawfully exempts a maximum of ten policy-making positions. Because there has been no hearing, formal or informal, the policy-making quality of the position has not been established, although Burgess has brought this issue before the DOC and DOA in her timely request for § 120.57 proceedings. Contrast Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977). As stated in Headley v. Baron, 228 So.2d 281 (Fla.1969):

[A]n individual has no constitutional right to be hired by the government. However, once employed and having earned benefits such as job security and seniority, a government employee does achieve an employment status which he is entitled to protect against unjust or unlawful deprivation.

Further, Burgess’ substantial interests were affected in that the redesignation required her to choose between a job in the CSC which necessarily resulted in a layoff, or she could remain in her position without Career Service protection. Either way, she had a substantial interest in actually retaining a Career Service position. Therefore, we think Florida Administrative Code Rule 22A — 7.12 applies here:

It is the responsibility of the employing agency [here, DOC] to comply with the requirements of Chapter 120, Florida Statutes, in all personnel actions in which the substantial interests of an employee are adversely affected and no right of appeal to the Career Service Commission is provided by these rules.

Accordingly, we reverse and remand for further proceedings addressing the sole issue of whether Burgess’ position is lawfully exempted as a policy-making position.

McCORD, SHIVERS and JOANOS, JJ., concur.

      . Sec. 110.205, Fla.Stat. (1979), provides in part:
      (1) The career service to which this part applies shall include all positions not specifically exempted by this part, any other provisions of the Florida Statutes to the contrary notwithstanding.
      (2) Exempt positions. — The exempt positions which are not covered by this part include the following:

      (h) A maximum of 10 policy-making positions ... and 10 such policy-making positions, ... in each of the other departments, as designated by the head of each such department ... However, the employing agency shall advise the department in writing of each position to be exempted, and each such exemption shall be subject to the approval of the department as being policy-making ....

      . Notably, the CSC does not have jurisdiction to hear this challenge in conjunction with the layoff issue. An appeal from a layoff is based on whether the layoff was accomplished in accordance with Rule 22A-7.il. Rule 22M-2.-03; Rule 22A-7.11(9), Fla.Admin.Code. The rule does not allude to the issue raised here. Also, we do not regard the exemption designation as otherwise arising out of the layoff under § 110.205(3), Fla.Stat. (1979), granting the CSC jurisdiction to hear appeals arising out of any layoff. Otherwise, there is no statutory language suggesting that this allegedly unlawful action taken by DOC and DOA is shielded from review. Compare Nute v. Florida Department of Law Enforcement, 397 So.2d 1222 (Fla. 1st DCA 1981).

      . This case may yet qualify for an informal hearing pursuant to § 120.57(2). We leave this decision up to the agency on remand. Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 810, 815 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla. 1979). DOC and DOA fear that allowing this review will hamper other management decisions as to reorganization. DOC’s designation is proper, absent subterfuge, if the position is a policy-making one, whether it has always been one or has been recently changed to one. All that we require is compliance with the terms of the statute.


text:
    STATE of Florida, Appellant, v. Fred C. LAW, Appellee.
    No. VV-241.
    District Court of Appeal of Florida, First District.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Harry L. Shorstein, Jacksonville, for ap-pellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Fred C. Law was charged by information with four counts of grand theft of the second degree. Following a jury verdict of guilty as to the first three counts, the trial court granted Mr. Law’s motion in arrest of judgment on the grounds that the information upon which Mr. Law was tried is so defective that it will not support a judgment of conviction. We reverse.

In Martinez v. State, 368 So.2d 338 (Fla.1978), the court was faced with a challenge to the sufficiency of the charging information. Succinctly setting forth the standards by which the sufficiency of a charging information is weighed, the court stated, at page 339:

“An information will be quashed only if it is ‘so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.’ Fla.R.Crim.P. 3.140(o). See also, Brown v. State, 135 Fla. 30, 184 So. 518 (1938); Williams v. State, 92 Fla. 648, 109 So. 805 (1926); and Machin v. State, 270 So.2d 464 (Fla.3d DCA 1972). Generally, an information is sufficient if it follows the language of the statute, Major v. State, 180 So.2d 335 (Fla.1965); Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); and Harrell v. State, 79 Fla. 220, 83 So. 922 (1920), and need not set forth proof with which the state intends to establish its case. State v. Cauley, 213 So.2d 521 (Fla. 4th DCA 1968).”

Here, each count of the charging information not only tracked the statutory language of Section 812.014, Florida Statutes (1977), but in addition, each count stated with particularity that the theft occurred by the use of a check (or checks) in a designated amount, made payable to a named person, and each such check being described as drawn “on the account of the Skills Development Uplift Program at the Century National Bank, Jacksonville, Florida, Account No. 10 0469 9.” The information as a whole and each count thereof was sufficient to inform Mr. Law of the nature of the offense charged, and could not mislead or embarrass him in the preparation of his defense nor subject him to double jeopardy, which is the acceptable test of legal sufficiency. See State v. Dilworth, 397 So.2d 292 (Fla.1981).

Appellee had relied heavily upon this Court’s decision in the case of Dilworth v. State, 381 So.2d 1125 (Fla. 1st DCA 1979), but that case was only recently quashed by the Supreme Court, State v. Dilworth, supra. Lest appellee feel this to be an ironic and cruel blow of fate, we hasten to point out that this Court’s Dilworth decision was of no help to appellee because the deficiency noted in our Dilworth decision, i. e., the failure of the information to state any of the specific acts constituting the fraud, did not exist in the information in this case since, as we have noted above, each count of the information did state the particular circumstances making up the offense.

The order granting the motion in arrest of judgment is reversed and this cause remanded with instructions to enter judgment on the verdicts and for appropriate sentencing.

REVERSED AND REMANDED.

MILLS, C. J., and WENTWORTH, J., concur.


author: BASKIN, Judge. HENDRY, Judge,

text:
    Margaret KENNY, Appellant, v. AMBULATORY CENTRE OF MIAMI, FLORIDA, INC., et al., Appellees.
    No. 80-1164.
    District Court of Appeal of Florida, Third District.
    June 23, 1981.
    As Corrected on Denial of Rehearing July 28, 1981.

      Robert M. Brake, Coral Gables, for appellant.
    Roy B. Gonas, Coral Gables, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Margaret Kenny, a registered nurse, brought an action against her employer, Ambulatory Centre of Miami, Florida, Inc., and its parent corporation, Ambucare International, Inc., pursuant to section 458.22(5), Florida Statutes (1977), in which she sought reinstatement to her position as full-time operating room nurse, reimbursement for lost wages, compensatory and punitive damages, court costs and attorney’s fees. She alleged that she had been demoted to part-time on-call status for refusing to assist with abortions and that her demotion violated her right to be free from religious discrimination. At trial, the court rejected her arguments. Ambulatory Centre maintained that fiscal necessity, combined with the refusal of other nurses to exchange their duties and assignments with those of appellant, justified its actions. The court agreed and entered final judgment in favor of appellees. We reverse the decision of the trial court upon our holding that section 458.22(5) precludes disciplinary action for refusal to participate in abortions. In addition, we hold that appellees failed to sustain their burden of proving they would incur undue hardship if they were to accommodate Nurse Kenny’s religious beliefs.

Appellant Kenny commenced work as an operating room nurse for the Ambulatory Centre of Miami in 1976. When she later objected on religious grounds to assisting in performing abortions, another nurse exchanged duties with her for a period of time. Thereafter she was unable to find employees who were willing to cooperate.

Appellant was asked to resign when she continued to avoid participating in the performance of abortions, but she refused. When another nurse was told by the Centre that she would be fired if she failed to assist in performing abortions, appellant advised that nurse that section 458.22(5) provided a right to refuse. Subsequently appellant was removed from full-time status and placed on part-time on-call status, thereby becoming subject to loss of fringe benefits.

The record discloses that at the time of appellant’s demotion appellees employed both full-time and regularly scheduled part-time nurses. The Centre performed procedures involving plastic surgery, gynecology, ophthamology, and podiatry. At trial appellees contended that Ambulatory Cen-tre’s audit showed net losses in 1977 and 1978 requiring it to reduce fixed costs. Appellant countered that gross revenues increased with the increase in the number of patients and number of procedures. The trial court received evidence that gynecological procedures constituted approximately sixteen percent of the total procedures performed at the Ambulatory Centre during the period in question. The court ruled that appellant’s demotion was justified by appellees’ “policy decision and fiscal management” for which there was a “justifiable and compelling basis” and that a “decision made in good faith based on fiscal necessity, although having a spin-off color of discrimination must prevail in an atmosphere of free enterprise and unfettered management process.” The court deemed it unnecessary that appellant’s religious beliefs be accommodated in the absence of sufficient cooperation from her fellow employees. Finding that appellees had established undue hardship incurred in reasonable efforts to accommodate appellant’s beliefs, the court entered Final Judgment and Amended Final Judgment in favor of appellees.

The interpretation of section 458.22(5), Florida Statutes (1977) presents a case of first impression. Section 458.22(5) states:

RIGHT OF REFUSAL. — Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy, nor shall any hospital or any person be liable for such refusal. No person who is a member of, or associated with, the staff of a hospital nor any employee of a hospital or physician in which or by whom the termination of a pregnancy has been authorized or performed, who shall state an objection to such procedure on moral or religious grounds, shall be required to participate in the procedure which will result in the termination of pregnancy. The refusal of any such person or employee to participate shall not form the basis for any disciplinary or other recriminatory action against such person.

Appellant argues that her employer violated the provisions of section 458.22(5) by demoting her for exercising her religious beliefs. She claims her employer’s actions stemmed not from financial demands but from a disciplinary motive. Her employer, she asserts, should have accommodated her unwillingness to participate. Appellees respond that the trial court’s final judgment correctly observed that accommodation of appellant’s religious beliefs constituted an undue hardship. In its ruling, the court cited Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). We therefore compare the federal Civil Rights Act as construed in federal cases such as Trans World Airlines, Inc. v. Hardison, supra, with the Florida statute examined in these proceedings. Our purpose is to determine the appropriate standard of conduct for an employer whose employee chooses to exercise a right under section 458.22(5). We make clear at the outset that questions relating to the right to conduct abortions are not at issue here; only the right of an employee to refuse to assist in performing abortions under section 458.22(5) is before the court.

I. Federal Law.

The Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2, provides:

§ 2000e-2. Unlawful employment practices — Employer practices
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

In 1972, Congress amended Title VII to include the following definition of religion:

The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

42 U.S.C. § 2000e(j).

That amendment ratified the provisions of the 1967 EEOC guidelines construing 42 U.S.C. § 2000e — 2.

29 C.F.R. § 1605.1 (1967) provides in pertinent part:

(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of an employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantial similar qualifications during the period of absence of the sabbath observer.
(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.

In Trans World Airlines, Inc. v. Hardison, supra, the United States Supreme Court interpreted these EEOC guidelines. The court held that an employer must make reasonable efforts to accommodate an employee’s religious practices unless those efforts resulted in undue hardship for the employer. An employer, however, is not required to deprive one employee in order to accommodate another, cf. Huston v. Local 93 International Union, 559 F.2d 477 (8th Cir. 1977) (a union has no duty to vary the seniority provisions of the collective bargaining agreement in order to accommodate or prefer the religious needs of others), nor is the employer required to bear more than a minimal cost. The Trans World Airlines court reviewed the applicability of Title VII to the discharge of an employee whose religion required him to observe his Sabbath on Saturday. The employee held a position in which he had sufficient seniority to avoid working Saturdays; he then sought and received a transfer to a job in which he lacked sufficient seniority to retain his Saturday Sabbath. The union was unwilling to violate collective bargaining agreements governing seniority and the employer argued that had the employee been permitted to work fewer days, it would have been forced to pay substitute employees overtime wages. The Supreme Court ruled that reasonable efforts short of undue hardship to the employer were necessary to accommodate the employee’s religious needs but decided th^t violation of the collective bargaining agreements and permitting fewer work days were not mandated.

The federal statute protects religious observances or practices. Trans World Airlines, Inc. v. Hardison, supra; McDaniel v. Essex International Inc., 571 F.2d 338 (6th Cir. 1978). It places the burden on the employee to demonstrate that his religious practice was the reason for discipline. Once the employee has met his burden, the employer must demonstrate that accommodation would cause undue hardship. Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978); Draper v. United States Pipe and Foundry Co., 527 F.2d 515 (6th Cir. 1976); Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972). The Draper court rejected the argument that forcing other workers to change shifts would cause a hardship on them stating:

[W]e are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that has never been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.

Draper at 520. Thus it is clear that federal law mandates reasonable accommodation to allow an employee to practice his religion.

II. Other States.

To assist us in deciding whether the federal test should be applied in Florida, we now examine decisions from other jurisdictions. In so doing, we observe that many states lack this type of civil rights statute. Of those states that do have similar statutes, some have incorporated the federal undue hardship-reasonable accommodation test and the large body of federal law interpreting the 1967 EEOC guidelines and the amendment to the Civil Rights Act. Kentucky Commission on Human Rights v. Commonwealth, Department for Human Resources, 564 S.W.2d 38 (Ky.App.1978) illustrates the use of the federal test.

Other states have statutes similar to Florida’s and prohibit employers from discriminating against employees who exercise religious beliefs. Many of these statutes do not include the federal test. Of these states, some have, nevertheless, judicially interpreted their statutes to require the weighing of reasonable accommodation efforts against undue hardship. See Wondzell v. Alaska Wood Products, Inc., 583 P.2d 860 (Alaska 1978), rev’d on other grounds on rehearing, 601 P.2d 584 (Alaska 1979); Rankins v. Commission on Professional Competence of Ducor, 24 Cal.3d 167, 593 P.2d 852, 154 Cal.Rptr. 907, appeal dismissed, 444 U.S. 986, 100 S.Ct. 515, 62 L.Ed.2d 416 (1979); Maine Human Rights Commission v. Local 1361, United Paperworks International Union, 383 A.2d 369 (Me.1978); American Motors Corp. v. Department of Industry, 93 Wis.2d 14, 286 N.W.2d 847 (1979). Contra Corey v. Avco-Lycoming Division, Avco Corp., 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973); Olin Corp. v. Fair Employment Practice Commission, 34 Ill.App.3d 868, 341 N.E.2d 459 (1976), aff’d, 67 Ill.2d 466, 10 Ill.Dec. 501, 367 N.E.2d 1267 (1977); Michigan Department of Civil Rights v. General Motors Corp., 93 Mich.App. 366, 287 N.W.2d 240 (1979).

Our evaluation of the alternatives, that is, whether to apply the federal standard requiring reasonable accommodation unless undue hardship exists, or to apply the more stringent standard of disallowing discrimination regardless of the cost, impels us to accept the former. We therefore adopt the requirement that an employer must reasonably accommodate an employee’s religious practices unless he establishes that he would suffer undue hardship.

Turning to the facts of the case before us, we find that although there is evidence of an accommodation attempt by the employer, the evidence does not establish that additional accommodation efforts would have caused undue hardship. Some efforts toward accommodation were made by fellow employees seeking to assist appellant. When other nurses ceased cooperating, however, the employer made no further effort to accommodate appellant. The record discloses that Nurse Kenny was able to assist in approximately eighty-four percent of the procedures performed at the Centre. Gynecological procedures constituted approximately sixteen percent of the total procedures performed. There is no showing that schedules could not have been arranged to accommodate appellant’s religious beliefs.' Although appellees would incur some hardship, the record does not support a finding that undue hardship would result. A “reasonable accommodation is a question of fact, not law and where the lower court’s finding of fact is clearly erroneous it must be rejected.” Redmond v. GAF Corp., supra.

The legislature has seen fit to afford citizens a right to choose, that is, to refrain from assisting in performing abortions in accordance with the dictates of their religion. In so doing, the legislature has announced a policy permitting religious practices to supercede or take priority over certain employment practices. The law provides that an employee may not be fired or disciplined for exercising religious beliefs, and requires an employer to accommodate those beliefs unless the employer would suffer undue hardship. Each case must be examined on its particular facts to determine whether a good-faith effort to accommodate the employee’s religious beliefs has been undertaken and to determine whether the employer is suffering undue hardship in his attempts to meet the required standard. Padon v. White, supra.

We therefore hold that appellees failed to sustain their burden of establishing undue hardship, and we reverse the trial court’s decision. We remand the cause for the entry of an order reinstating appellant to her former position and for the determination of the amounts owed her in unpaid wages, damages and for other appropriate relief.

Reversed and remanded for further proceedings.

HENDRY, Judge,

dissenting.

I respectfully dissent from the majority opinion because it appears to me from the opinion and record that this court is substituting its judgment for that of the trial court by re-evaluating the evidence. Where there is substantial competent evidence to support the trial judge’s findings, as I believe there is here, an appellate court should not substitute its judgment for that of the trial court by re-evaluating the evidence. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972); Dory Auerbach Realty Co. v. Waser, 359 So.2d 902 (Fla. 3d DCA 1978).

The trial court’s findings as set forth in the final judgment are:

“1. That this action filed by the Plaintiff is founded on employment discrimination from her employment as a nurse and her duties in termination of pregnancy procedures and other related birth control and sterilization operations contrary to her religious beliefs;
2. The Court further finds that Plaintiff was reduced to part-time status predicated on Defendant’s policy decision and fiscal management;
3. The Court further finds that the Defendant’s decision to reduce Plaintiff’s employment is consistent with Defendant’s fiscal position and that the record and evidence clearly establishes this predicate;
4. The Court further finds that it may appear at first blush that the Defendant has engaged in discriminatory practice; however, an analysis establishes that there is justifiable and compelling financial basis for Defendant’s decision;
5. The Court further finds that a decision made in good faith based on fiscal necessity, although having a spin-off col- or of discrimination must prevail in an atmosphere of free enterprise and unfettered management process;
6. The Court further finds that the actions and conduct of the Defendant as demonstrated by the evidence and its efforts to accommodate the Plaintiff were reasonable under all the circumstances and does not transgress the purpose and intent of the existing laws and statutes;
7. The Court further finds that the limited staff and demand for services of the Plaintiff do not justify that her religious beliefs and moral principles be accommodated in view of the absence of sufficient cooperation and acceptance from her fellow employees;
8. The Court further finds that Plaintiff could not be forced into a position of compromising her beliefs in order to gain a livelihood in Defendant’s employ; however, under this severe ordeal testing the very tentants [sic] of Plaintiff’s faith, it would seem reasonable that Plaintiff would elect to seek employment in a receptive market;
9. The Court further finds that the lack of employee cooperation would have resulted in the employer paying additional wage salaries contrary to sound business and fiscal management;
10. The Court further finds that the employer under existing law is required to make a reasonable accommodation for the religious beliefs of employees. Trans World Airlines, Inc. v. Hardison [432 U.S. 63], 97 S.Ct. 2264 [53 L.Ed.2d 113];
11. The Court in the instant action finds that the Defendant has made out a case of undue hardship in an effort to accommodate the Plaintiff’s religious beliefs and exerted reasonable efforts to accommodate the Plaintiff’s beliefs;
12. In balancing the competing rights and interests, the Court is constrained to find for the Defendant.”

I would affirm.

      . Renumbered 390.001(8), Florida Statutes (Supp.1980).

      . Under part-time on-call status, Nurse Kenny worked only when extra nurses were needed.

      . Appellant did not participate in a number of plastic surgery procedures at the request of Dr. Snyder, a plastic surgeon, who preferred to work with his own team. The exhibits do not disclose the percentage of plastic surgery operations performed by Dr. Snyder.

      .Appellees’ audit, however, is of the parent cooperation, Ambucare, and not of the Ambulatory Centre.

      . Defendant’s Exhibit F, a chart exhibiting the surgical procedure activity for the months of January, 1977 to April, 1979, discloses that of 1,220 surgical procedures performed in 1978, 170 or 13.9% were gynecological procedures; of 614 surgical procedures between May and November of 1978, 96 or 15.6% were gynecological procedures. Appellant first refused to assist in abortions in May, 1978. Her demotion to part-time on-call status occurred in October of that year.

      . The extent to which an employee tries to adjust may be considered. Howard v. Haverty Furniture Companies, 615 F.2d 203 (5th Cir. 1980); Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977); Padon v. White, 465 F.Supp. 602 (S.D.Tex.1979). Complaints from other employees do not constitute undue hardship unless . morale problems become intolerable. Draper v. United States Pipe and Foundry Co., supra; Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), affd by an equally divided court, 429 U.S. 65, 97 S.Ct. 342, 50 L.Ed.2d 223 (1976).

      . The evidence fails to establish that Nurse Kenny was precluded from assisting in all plastic surgery procedures.


author: COBB, Judge.

text:
    Barbara BELANCY, Appellant, v. William BOOTH, in his capacity as Superintendent of Florida Correctional Institute at Lowell, Florida, Appellee.
    No. 80-1247.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Rehearing Denied July 16, 1981.
    Steven L. Seliger, Quincy, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellee.
   COBB, Judge.

The appellant Barbara Delaney, whose legal name is Barbara Milton, has been imprisoned since 1977. While incarcerated, she conceived a child and it was born to her on August 17, 1980 at a private hospital while she was serving her sentence at the Florida Correctional Institution at Lowell, Florida. After the child’s birth, Delaney was returned to the institution, while the child remained at the hospital. Delaney is scheduled for parole in October 1982.

The appellant Delaney filed a petition for custody of the child and a motion for temporary injunctive relief in which she sought immediate custody pending a court determination of the child’s best interests. In support of the motion for temporary injunctive relief, Delaney filed an affidavit of a doctor who stated that bonding between an infant and its mother is important and an affidavit of Mary Lou Milton, the appellant’s mother, who stated that it would be a hardship for her as the grandmother, to take care of the child, but that she would do so if if were not allowed to be left with the appellant. In opposition to the motion for temporary injunctive relief, the state filed an affidavit of a doctor who stated that bonding occurs from the moment of birth until about four to five days later; that the event is more important to the mother than to the infant; that the time for bonding is past; and that the infant needed to be placed in a better environment. The trial court denied the motion for temporary in-junctive relief and placed the child in temporary foster care with the Department of Health and Rehabilitative Services. The appellant then moved for rehearing on the ground that the trial court did not have the authority to commit the child to the care of the department without a finding of dependency. Upon rehearing, the trial court found that the child had been legally abandoned and neglected and was therefore dependent within the meaning of Chapter 39, Florida Statutes, and should be committed to HRS.

The trial court then heard testimony on the issue of whether the child should be placed under the authority of section 944.24, Florida Statutes (1979), with the appellant, the appellant’s mother, or a foster home. At the hearing, Barbara Delaney testified that she had always wanted to keep the child. Prior to being incarcerated she and her illegitimate children had lived with her mother in Miami. She had worked while her mother kept the children. This would be the same situation upon her release. The other children were aged eleven, ten, and eight. She had used heroin up until the year 1973, and during the time that she had the three illegitimate children. It was her testimony that she wanted the child to be placed with her mother, if it could not be with her in prison.

Elizabeth McMahan, Ph.D. in clinical psychology, testified that bonding between a child and the primary care-giver is very important to the child’s emotional needs and that transferring that bonding increases problems for the child. It was her opinion that the prison environment would not make any difference to the child, as long as the child was being well cared for. It was also her opinion that the best interests of the child would be served by placing it with the mother.

William Booth, Superintendent of Florida Correctional Institution at Lowell, testified that he had designated a portion of the clinical area as a nursery and that at this point he could house four mothers and four babies. He had purchased or received some toys as donations. However, stimulation for the babies at this point was limited to personal contact with the mother and medical staff and watching the mobiles float in the air. The children were allowed to go outside into the fresh air twice a day due to security problems. He testified that ill inmates in the clinic are not supposed to enter the nursery area, but their access is difficult to control because of the staff limitations.

Following the testimony, the trial court found that it would not be in the best interests of the child to allow it to remain in the prison environment, and that the child should be placed with its grandmother and its brothers and sisters. An order was entered to that effect, and it is this order that the appellant brings to this court.

Section 944.24, Florida Statutes (1979), provides:

(1) All regularly employed assistants, officers and employees whose duties bring them into contact with the inmates of the institution shall be women-as far as practicable.
(2) If any woman received by or committed to said institution shall give birth to a child while an inmate of said institution, such child and its welfare shall be within the jurisdiction of the appropriate circuit court if the mother chooses to keep the infant. Upon petition by the Department of Corrections, the mother, or another interested party, a temporary custody hearing before the circuit court judge without a jury shall be held as soon as possible to determine the best interests of the child. The department shall provide and maintain facilities or parts of facilities, within the existing facilities, suitable to ensure the safety and welfare of such mothers and children, to be used at the discretion of the court.
(3) Any woman inmate who gives birth to a child during her term of imprisonment may be temporarily taken to a hospital outside the prison for the purpose of childbirth, and a charge for hospital and medical care shall be charged against the funds allocated to the institution. The Department shall provide for the care of any children so born and shall pay for their care until suitably placed.

In this case, the trial court was faced with the decision, pursuant to provisions of the above statute, to either place a newborn infant in prison with its mother or to place it with its maternal grandmother and three siblings outside the prison. The paramount consideration in such a custody determination, of course, is the best interest of the child, not the qualified “right” of the parent. In re Interest of Camm, 294 So.2d 318 (Fla. 1974). The trial court in this case heard testimony that clearly sustained its discretionary decision to place the infant with the grandmother, who would be taking care of it upon the mother’s release from custody in any event. The trial court specifically relied upon the love of the grandmother, the companionship of the infant’s siblings, and the consistency of care in the private home. This was not an abuse of the discretionary power of the court. Dinkel v. Dinkel, 322 So.2d 22 (Fla. 1975); Johnston v. Boram, 386 So.2d 1230 (Fla. 5th DCA 1980).

The appellant’s argument concerning the trial court’s finding of dependency is moot in this case. See Evans v. Evans, 383 So.2d 649 (Fla. 5th DCA 1980) (concurring opinion by Judge Orfinger).

The appellant has no constitutional or statutory right to raise the child in prison. Lawful incarceration limits many privileges and rights, a “retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501 (1974).

Accordingly, the determination of the trial court is AFFIRMED.

SHARP and COWART, JJ., concur.


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

text:
    In re the Marriage of Henry James CALDWELL, Appellant, v. Judy CALDWELL, Appellee.
    No. 80-696.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    Rehearing Denied July 24, 1981.

      Henry J. Martocci, Cocoa, for appellant.
    Hubert C. Normile, Jr., of Storms, Kras-ny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant/husband appeals from a judgment of dissolution of marriage. Trial counsel for appellant (who was not appellate counsel) filed an answer asking the court to grant the husband a special equity in the marital residence. Counsel later amended the answer dropping all reference to the special equity and substituting therefor a claim that the husband was the sole owner of the property. The claim of sole ownership was based on the alleged nullity of the quit claim deed conveying an interest to the wife. No transcript of the trial was made but the court executed an “Approved Statement of Proceedings” pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). According to that statement, the court had determined that:

[Ijssues concerning the validity of a quit claim deed between appellant as grantor and appellee as grantee was a classic case to remove the cloud on the title to property and that the trial court should go ahead and dissolve the marriage and establish the amount of child support leaving all questions relating to the record title owner or the rights of the parties to the ownership of the former marital dwelling to be litigated after the conclusion of the dissolution of marriage action in a separate action instituted for the purpose of removing a cloud on the title to the former marital dwelling.

Appellant contends that the court should have considered the question of a special equity. Without a record, however, we cannot determine what was proved or considered. While under Ball v. Ball, 335 So.2d 5 (Fla.1976), the bare allegation that the husband was the owner of the property before the marriage may support a claim for special equity, nothing in the pleadings or record here shows that the court was ever asked to rule on a special equity. An examination of the answer and amended answer reflect an abandonment of the claim of a special equity. Under such circumstances, it clearly was not error for the court to fail to grant or deny a special equity. As to the question of the validity of the deed, the statement of proceedings clearly reflects that the court did not rule on that issue and, while the court could have considered that question in the dissolution proceedings, see Firestone v. Firestone, 263 So.2d 223 (Fla.1972), no objection is noted to having a separate determination of the validity of the deed.

The second point raised by appellant is whether the trial court erred in providing the wife, the custodial parent, with the exclusive use of the marital residence as an element of child support.

The language of the final judgment to which this question is addressed, is:

4. As an element of child support, Petitioner shall continue to have the exclusive use and possession of the marital residence located as 2320 Reef Avenue, Indialantic, Florida, for herself and the minor child until further order of the court, provided, however, that no person of the opposite sex not related by blood or marriage shall occupy the said premises.

Appellant contends that the court did not have authority to grant to the wife the right to exclusive possession of the residence in the event she remarries.

Prior to Duncan v. Duncan, 379 So.2d 949 (Fla.1980), the Florida courts held that the cústodial parent was entitled to the exclusive use and possession of the marital home until the parties’ children reached majority or until his or her remarriage. See, e. g., McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980); Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975). Duncan rejected the asserted “inflexible rule” that exclusive possession must terminate when all children born of the marriage have attained the age of majority. The court, however, did not address the issue whether the award must terminate upon remarriage of the spouse. Cases decided after Duncan have continued to impose this requirement. See, e. g., Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981); Dykes v. Dykes, 389 So.2d 334 (Fla. 1st DCA 1980). The wife argues that the award was labeled “child support” and that child support is unaffected by remarriage of the custodial parent.

The award of exclusive possession of the marital home also contributes to the support of the wife by providing her with rent-free housing. Should the wife remarry and her new husband move into the home with her, appellant would be then contributing to the support of the new husband by providing him with rent-free housing. While we have found no cases on point, we believe the better rule to be that exclusive possession should terminate upon the wife’s remarriage. While this would be a change in circumstances justifying a reexamination of the child support obligation, we hold that one spouse cannot be deprived of his or her right to possession of jointly held property awarded to the other spouse as an incident of child support upon that parent’s remarriage.

We reverse paragraph four of the final judgment insofar as it would grant exclusive possession of the marital residence to the wife after her remarriage, and we remand to the trial court to amend the judgment in this respect.

REVERSED IN PART and REMANDED.

COBB and SHARP, JJ., concur.

      . At oral argument counsel for the parties announced that such determination was currently underway.


text:
    Robert KAUFMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-307.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 12, 1981.
    Geoffrey C. Fleck and Max B. Kogen of Kogen & Fleck, Miami, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was convicted of several violations of the state securities laws. He raises numerous issues on appeal.

Initially the appellant challenges the sufficiency of the charging document for its failure to specifically allege that he was a dealer or salesman and that the securities were required to be registered. As to the latter alleged deficiency, we note that Sections 517.07 and 517.17, Florida Statutes (1973) provide that all but certain exempt securities must be registered and in addition specifically provides that the state is not required to alleged in an information that the particular securities involved are not exempt from registration. As to the former alleged deficiency argument, we believe the allegations of the information were sufficient to charge the appellant with selling securities in violation of the provisions of Section 517.12, Florida Statutes (1973). Cf. Biederman v. State, 392 So.2d 982 (Fla. 4th DCA 1981).

We believe there was sufficient proof to implicate and hold appellant responsible for the sale of securities in violation of Section 517.12. The proof was also sufficient to prove that the securities were unregistered and were sold by unregistered salesmen. We reject appellant’s constitutional attack on the securities statutes because the statutes do not require a showing of guilty knowledge or scienter as a prerequisite for conviction. See State v. Houghtaling, 181- So.2d 636 (Fla.1965). We have reviewed the entire jury instructions, including the instructions on circumstantial evidence and reasonable doubt, and find no error in the trial court’s ruling denying appellant’s request for a specific jury instruction on the jury’s obligation if a reasonable hypothesis of innocence was established during the state’s case.

We have additionally considered and find no reversible error in the appellant’s assertion that the state made numerous prejudicial references to collateral crimes and other collateral misconduct of the appellant. We have examined the references complained of by the appellant and find that they either constitute no error at all or constitute harmless error. Most of the references were proper and constituted relevant evidence of the pending offenses involving the sale of unregistered securities by unregistered salesmen. See Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Ruffin v. State, 397 So.2d 277 (Fla. 1981).

Finally, the state has conceded error in the trial court’s imposition of separate sentences for two crimes arising out of a single transaction. The offenses involved herein occurred before October 1, 1976, the effective date of Section 775.021(4), Florida Statutes, which authorizes multiple punishments for separate offenses arising out of a single criminal transaction, except when the one offense is a lesser-included offense of the other. Prior to the enactment of Section 775.021(4), only one penalty could be imposed. State v. Munford, 357 So.2d 706 (Fla.1978); Thomas v. State, 372 So.2d 997 (Fla. 4th DCA 1979); Sparks v. State, 256 So.2d 537 (Fla. 4th DCA 1972), writ discharged 273 So.2d 74 (Fla.1973).

Accordingly, the judgment of the trial court is affirmed, but this cause is remanded for resentencing in accordance with this opinion. The appellant need not be present for the resentencing.

ANSTEAD, HERSEY and HURLEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    The CITY OF FORT LAUDERDALE, Appellant, v. Kenneth S. NATION, Appellee.
    No. 80-949.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 6, 1981.
    Donald R. Hall, City Atty., and Dennis E. Lyles, Deputy City Atty., Fort Lauderdale, for appellant.
    Edwin H. Chappell, Jr., and M. Daniel Hughes of Chappell, Brandt & Gore, P. A., Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

At issue here is whether a City can amend its pension plan to lower the mandatory age at which firemen must retire, from 55 to 50 years of age. We conclude that it can and reverse the trial court.

The particular Fire Captain now before us was first employed as a fireman by the City in 1957 at age 33 and had risen to the rank of Captain by the time of his forced retirement in 1977. For some considerable period prior to said retirement, the Fire Captain had belonged to the City Employees Pension Plan, but in 1972 that pension plan was abolished and the City established two new ones. The first of these was labeled the General Employees Retirement System under which employees would not have to retire until 65 years old and the second plan was the Police and Firefighter’s Retirement System under which they would have to retire ten years earlier, at age 55. Every city employee was required to belong to one or other of these plans but the Fire Captain for example could choose whichever of the two he wanted. • It is this option to choose which forms the principal basis for this appeal.

It is not argued that a City cannot reduce the retirement age of its firemen prospectively. The question presented is whether they can reduce it retroactively, thus adversely affecting those who became participants when the retirement age was more generous.

The basic law appears to be that public employees have no vested rights under a pension statute even though they are required to make contributions under the plan. State ex rel. Holton v. City of Tampa, 119 Fla. 556, 159 So. 292 (1934); Voorhees v. City of Miami, 145 Fla. 402, 199 So. 313 (1940). However, there is an important exception where municipal pension plans are involved and the participation is voluntary. If the employee is not required to contribute to the pension plan and does so solely on a volunteer basis then in such event the benefit “may not be modified or reduced by subsequent amendatory legislation for the reason that those electing to participate in such voluntary plans acquire vested rights of contract .... ” State ex rel. O’Donald v. City pf Jacksonville Beach, 142 So.2d 349, 353 (Fla. 1st DCA 1962), aff’d, 151 So.2d 430 (Fla.1963). On the other hand, the same O’Donald opinion, beautifully expressed and reasoned by the late Judge Wigginton, also held that if the participation is mandatory, the benefits may be modified providing the employee is still in active service at the time of the amendment and also providing “the amendment does not reduce the benefits to such an unreasonable extent as to justify the inference that deprivation and not reasonable regulation was the legislative object in view.” O’Donald', supra, 142 So.2d at p. 352.

In the case at bar there is no question but that the Fire Captain was still in active service at the time of the amendment. Likewise there is no argument that the legislative object in view amounted to a deprivation (although this individual Fire Captain suffered a loss) inasmuch as the amendment increased the basic benefits. The crucial question is: Was the participation voluntary?

The Fire Chief argues that it was voluntary because he had a choice of one plan or the other. We cannot agree. He had to mandatorily participate in the city’s pension scheme and his election was limited to which set of benefits he wished to have cover him. That is not a voluntary participation which to us, by definition, would permit him not to partake in the pension scheme at all.

We are not sure we like the result in this case, but it appears to presently be the law of Florida. Yet is does not quite comport with the language used by the supreme court in its affirmance of the O’Donald case. See City of Jacksonville Beach v. State, 151 So.2d 430 (Fla.1963). In this latter opinion, much was made of why these retirement systems should be sustained on the theory that “they offer an added inducement to those with special skills and techniques to remain in government employment ... and make government service a career rather than a passing interlude .... It is not difficult to conceive how this theory would be exploded if prospective employees were told that, after a short service or a long one, the legislature could, nevertheless, disturb the arrangement anytime it saw fit since all employees in a given category were required to be members of a standard plan.” Id. at 431 — 432.

It is true that the supreme court version of O’Donald was fortified by the fact that Mr. O’Donald had in fact retired at the time of the amendment unlike the case now before us. This being so and in the light of the Supreme Court’s declaration about holding such plans sacrosanct, we wonder whether the result would not have been the same even if Mr. O’Donald had still been in active service at the time of the amendment.

There can be no doubt that the Fire Chief now before us suffered a large pecuniary loss by reason of his early retirement and certainly the matter is of great public importance to career public service employees. As a consequence, we certify the following question to the supreme court:

DOES THE SUPREME COURT DECISION IN CITY OF JACKSONVILLE BEACH v. STATE, SUPRA, PERMIT MUNICIPALITIES TO LOWER RETIREMENT AGES THUS ADVERSELY AFFECTING THE INCOMES OF PUBLIC EMPLOYEES WHO JOINED THE MANDATORY RETIREMENT SYSTEM AT A TIME WHEN IT PROVIDED FOR RETIREMENT AT AN OLDER AGE?

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.

      . He thus was 53 rather than 50. However, the 50 year old retirement was subject to the passage of a minimum of twenty (20) years employment which twenty years was concluded in 1977.


author: ANSTEAD, Judge.

text:
    James COURTRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 80-1495.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 12, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Robert E. Adler, Asst. Public Defenders, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant was charged with first degree murder and attempted first degree murder and convicted of second degree murder and aggravated assault. Both charges arose out of an incident involving two victims. The main issue of concern to us on appeal is whether the trial court erred in allowing the state to elicit from a witness a brief statement made by the defendant to a police officer upon viewing the deceased victim’s body to the effect that he, the defendant, just wanted to make certain that the victim was dead.

The state failed to specifically disclose to defendant’s counsel in discovery prior to trial the fact that the witness had overhead the defendant’s statement. During the course of the trial and prior to the time the testimony was elicited, the trial court conducted an inquiry concerning this violation of the criminal rules of procedure as required by the Florida Supreme Court. See Richardson v. State, 246 So.2d 771 (Fla. 1971). Among the factors considered by the trial court at that time was the fact that the defendant was aware that a police officer would be testifying about the same matter elicited from the witness. In fact the police officer had testified about the incident at a pretrial hearing and the officer also subsequently testified about the incident at trial.

While we may not have ruled the same way as the trial court, we do not believe the defendant has established reversible error in the trial court’s ruling. Although the witness was able to remember the exact words used by the defendant while the police officer was only able to recount the defendant’s insistence upon seeing the body and his “smile” upon doing so, the gist of the descriptions was the same. To that extent the evidence was cumulative.

In addition, the defendant was convicted not of first degree murder but of second. We note that the evidence to sustain this conviction was overwhelming, and included the defendant’s own detailed statement as to how he first wounded the victim and then, while the victim was lying helpless on the ground, shot the victim in the head at point-blank range. For whatever reasons, the jury chose to convict the defendant of second degree murder instead of first degree as charged. Under these circumstances, including those set out above, we believe any error in admitting the statement was harmless. We have considered the other issue raised by defendant and find no error.

Accordingly, the judgment and sentence of the trial court is hereby affirmed.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Leon PHILLIPS, Appellant, v. Natalie McDERMOTT, f/k/a Natalie Phillips and Bessie Rauch, Appellees.
    No. 80-1827.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1981.
    Rehearing Denied Aug. 7, 1981.
    Robert M. Kahn, Fort Lauderdale, for appellant.
    Charles T. Whitelock of Feinstein & Whi-telock, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. See Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979).

ANSTEAD and HURLEY, JJ., concur.

GLICKSTEIN, J., dissents without opinion.


author: McCORD, Judge.

text:
    John Bill FAIRWEATHER, Appellant, v. STATE of Florida, Appellee.
    No. UU-41.
    District Court of Appeal of Florida, First District.
    June 25, 1981.
    Rehearing Denied Aug. 3, 1981.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction of sexual battery, raising four points for review. We affirm in part and reverse in part.

We first consider appellant’s challenge to the trial court’s finding that § 947.16, Florida Statutes, is constitutional and we find no error. See Arnett v. State, 397 So.2d 330 (Fla. 1st DCA, 1981).

Next, appellant contends that the in-court identification made of him by the victim was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable mistaken identification. From our examination of the record, we find that point to be without merit.

We have also considered appellant’s assertion that the trial court erred in denying his motion in limine to suppress any testimony relating to the voice and corporeal identification procedures because the prosecutor excluded the defense counsel from that portion of the lineup procedure where the witness gave his reaction to the lineup in violation of appellant’s constitutional rights to effective assistance of counsel. We find that assertion to be without merit also. See U.S. v. White, 617 F.2d 1131 (5th Cir. 1980), and U.S. v. Banks, 485 F.2d 545 (5th Cir. 1973), cert. denied 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974).

Appellant further contends that the trial court erred in its refusal to instruct the jury, pursuant to Florida Rule of Criminal Procedure 3.390(a) as to the maximum and minimum sentences which could be imposed upon appellant. The record reflects that appellant objected to the trial court’s refusal to give that instruction, and thus the point was preserved for review. In Tascano v. State, 393 So.2d 540 (Fla.1980), the Supreme Court ruled that a trial court’s refusal to give such an instruction upon request was error. Appellee here contends that the error was harmless. From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent thereto, the trial court’s error in this respect cannot be deemed harmless. Therefore, we must reverse and remand for a new trial. However, we certify to the Supreme Court of Florida that the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?

Affirmed in part, reversed in part, and remanded for a new trial with the above-posed question being certified to the Supreme Court.

SHIVERS and JOANOS, JJ., concur.


author: ERVIN, Judge. BOOTH, Judge,

text:
    Tranquilino CASTRO, Appellant, v. FLORIDA JUICE DIVISION and Southern Fire Adjusters, Appellees.
    No. UU-485.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    Rehearing Denied Aug. 4, 1981.

      Ira J. Druckman, Miami, for appellant.
    John F. McMath, Miami, for appellees.
   ERVIN, Judge.

In this workers’ compensation action, the claimant contends that the deputy commissioner erred in finding that the claimant’s hypertension and obesity were not causally related to a foot injury which the claimant suffered in connection with a compensable accident. We agree and reverse that portion of the order which limited the recovery to a 25% permanent partial disability rating as to the foot injury only, and remand the case for reconsideration of the case as to the claims for temporary total disability, permanent total disability, or alternatively permanent partial disability in excess of the 25% rating, caused by claimant’s increased hypertension following the accident.

The deputy based his finding limiting recovery upon evidence showing that the claimant had a prior history of hypertension and obesity. Notwithstanding such evidence, there was no medical or lay testimony revealing that the claimant’s severe increase in blood pressure following the industrial accident was merely a natural progression of his disease, as opposed to an aggravation which was caused by the claimant’s enforced inactivity due to the foot injury. Nor was there any evidence showing that the claimant’s preexisting, asymptomatic hypertension had ever caused disability. Prior to his injury, the claimant’s blood pressure had generally been consistently in the range of 150/100, and his weight approximately 250 pounds. In December, 1977, several months after the accident, the claimant was examined by Dr. Robles, who then observed that the claimant was nervous, depressed, and was having difficulty breathing. Dr. Robles further observed that “[h]e seemed like stunned, like he did not realize what was going on around him.” At that examination, the claimant’s blood pressure was 200/135 and his weight was 296 pounds. He was also found ..to be suffering from inflammation of the ankles. Dr. Robles placed claimant on a “very strict” diet and prescribed medication specifically for the hypertension. With this treatment the claimant’s blood pressure temporarily decreased. However, on April 24, 1979, the claimant returned to Dr. Robles, complaining about different symptoms. He said he had intense headaches and that he was urinating approximately 45 times each night. A physical examination showed that his blood pressure was extremely high, 200/130 on his right side and 240/140 on his left side. Dr. Robles also noted that the claimant weighed 309 pounds on the April 24, 1979 visit. The claimant’s condition thereafter did not improve and gradually worsened. Dr. Robles indicated that by September, 1979, the claimant had become very tired and very sleepy and had great difficulty breathing. Finally, by October 13, 1979, the claimant’s condition had reached such dangerous levels that Dr. Robles decided to hospitalize him, resulting in his blood pressure and weight rapidly dropping to more reasonable levels.

The record then reveals a marked change in both claimant’s condition and treatment following the accident, and, as such, indicates an aggravation of a preexisting disease within the ambit of Section 440.-02(18), Florida Statutes (1977). As to such conditions, it is generally recognized that “ ‘an aggravation of [an] original injury is compensable if it is the direct and natural result of the compensable primary injury.’ ” Sosenko v. American Airmotive Corporation, 156 So.2d 489, 492 (Fla.1963) (citing I Larson, Workmen’s Compensation Law, § 13.11). While the necessary connection between the aggravated disease and the employment must be based upon a reasonable medical probability, Orange County Board of County Commissioners v. Breneman, 233 So.2d 377 (Fla.1970), this requirement was met by the testimony of doctors Robles and Simon, the former opining that claimant’s disability was a direct relationship between his enforced inactivity resulting from the accident, his weight gain, and the increase in his hypertension, the latter stating that the claimant’s problems began after the decreased activity from the foot injury. Although other portions of their testimony were less emphatic as to their conclusions on causal relationship — i. e., that a relationship was “possible”, and that there “could” have been a relationship— their testimony, when considered as a whole, indicated the requisite certainty to establish causation. See Florida State Employment Service v. Spathis, 9 FCR 182 (1973), cert. den., 317 So.2d 765 (Fla.1975). See also, Walker v. McDonnell Aircraft Corporation, 231 So.2d 210 (Fla.1970). Moreover, their medical opinions were no less satisfactory for their failure to use the magic words “reasonable medical certainty.” See Town of Davie v. Cooper, IRC Order 2-3770 (April 16, 1979).

Chester v. Bake Lines Trucking, Inc., IRC Order 2-3625 (December 1, 1978), is instructive. There the IRC held that the deputy commissioner erred in finding no connection between an accident and cardiomyopathy when the only medical opinions in the case established an aggravation of a preexisting condition. Here, the medical testimony was likewise unrefuted.

Although a deputy commissioner’s order does not have to state expressly that the testimony of a particular witness is not credible, see John Caves Land Development Company v. Suggs, 352 So.2d 44 (Fla.1977), the deputy should offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted. See Cohen-Ager Inc. v. Pierce, IRC Order 2-3173 (June 2, 1977). No such explanation was given, nor does it appear that the deputy’s implicit rejection is supported by the record.

Appellee’s reliance on Hernandez v. DeCario, 116 So.2d 429 (Fla.1959) and Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965), for the proposition that the deputy commissioner has the discretion to reject medical testimony and make a finding based on lay testimony and his personal observation of the claimant, is misplaced as to the facts before us. Such evidence is not sufficient to establish a causal relationship between an accident and conditions which are not readily observable or discoverable without medical examination. See Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA, 1981). In Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980), we stated that “lay testimony is not sufficient to establish the causal relationship between the accident and conditions such as high blood pressure which are not readily observable or discoverable without medical examination.”

Therefore, while we must credit the deputy’s expertise in determining causation issues, see Hernandez v. DeCarlo, supra it is difficult for us to envision how his personal view of the claimant’s foot could provide him with evidence supporting the finding that the claimant’s hypertension was not related to his foot injury. Restated, if personal observation in this type of case cannot establish a causal relationship, then we cannot see how such evidence can establish a lack of such a relationship.

The deputy, in arriving at his conclusion of no causal connection, appears to have implicitly placed a stricter standard of proof on the claimant to establish a causal connection in an “aggravation” case. In providing compensation for aggravation of preexisting conditions under Section 440.-02(18), the legislature has not imposed upon claimants seeking compensation for such conditions the same strictures it has upon claimants asserting disability caused by occupational diseases. Compare Section 440.-151. Finally, there is no judicially created standard of proof applicable in the instant case, such as that in Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1961), and Sosenko v. American Airmotive Corporation, supra.

Reversed and remanded for further proceedings consistent with this opinion.

JOANOS, J., concurs.

BOOTH, J., specially concurs.

BOOTH, Judge,

specially concurring:

I concur in the result reached by the majority remanding the cause for reconsideration of whether the claimant’s increased hypertension was causally related to his compensable foot injury. However, I wish to emphasize the severity of claimant’s initial injury, which incapacitated him for several months and nearly resulted in the loss of his foot. The claimant was hospitalized immediately after his right leg was caught in an orange juice press machine on the job. He suffered large lacerations and contusions extending into the muscles between his right knee and foot, including a deep laceration into his cuboid ankle bone. In addition, claimant sustained fractures of the cuboid. bone and of the fibula bone between the knee and ankle. These injuries required immediate surgery to remove devitalized tissue and foreign matter and to repair severed ligaments and tendons, followed by a cast and further surgery several weeks later, then by prolonged swelling of the claimant’s right foot and reduction of his normal activities. The causal connection between the initial injury and the dramatic increase in weight and hypertension is less tenuous when the serious initial injury and genuine forced incapacity resulting therefrom are considered.

      . An analogous theory of recovery was stated in Washburn v. Royal Castle Systems, Inc., IRC Order 2-3104 (March 31, 1977). There the IRC held the claimant was entitled to the treatment of a preexisting condition (obesity) if its continuing existence was retarding the process of recovery even though the claimant’s preexisting obesity was not aggravated by her industrial accident. The case at bar presents an even stronger case than in Washburn in that the evidence here establishes that the claimant’s industrial accident aggravated both his weight problem and his hypertension.


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

text:
    IOWA NATIONAL MUTUAL INS. CO., a Foreign Corporation, as subrogee of W. T. Yates and Jennie T. Yates; and W. T. Yates and Jennie T. Yates, individually, Appellants, v. The TAPPAN COMPANY, a Foreign Corporation; The Aetna Cas. and Surety Company, a Foreign Corporation; John P. Patterson Heating and Air Conditioning, and American Fire and Cas. Company, a Foreign Corporation, Appellees.
    No. VV-489.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    Rehearing Denied Aug. 4, 1981.

      Murray M. Wadsworth and William H. Davis of Wadsworth & Davis, Tallahassee, for appellants.
    E. Harper Field and Susan B. Kirkland of Field, Granger, Santry & Mitchell, Baya Harrison, III, and Fred M. Johnson of Fuller & Johnson, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

We affirm the trial court’s order for a new trial in this case, which, as Chief Judge Mills’ dissenting opinion reveals, hangs on a causation question. The trial court’s new trial order summarizes plaintiffs' theory at trial:

The plaintiffs’ case is constructed upon the theory that heat escaped from the heat exchanger and came to bear upon metal clips on the inside of the exterior cover of the furnace and that such heat was then transmitted through the clips to the point of weld or attachment of the clips to the outside cover and that this heat then ignited combustible material in the vicinity of the heater which thus led to the fire which destroyed the plaintiffs’ property.

Disregarding all conflicting theories of how the house was set afire, and taking at face value plaintiffs’ expert testimony which traced extremely high temperatures through a crack in the heat exchanger to the space enclosed by an insulated cover, and through the surface of the cover via metal clips which held the insulation in place, the trial judge found no evidence that combustible material outside the furnace was sufficiently close to the (assumed) superheated metal clips to burst into flame.

While the Chief Judge’s dissent is a model of persuasion, suggesting as it does that sufficient heat (no flame) rose from the exterior surface of the small metal clips to ignite the wooden floor joists from which the furnace was hung, several inches away, this rather obvious possibility seems to have escaped plaintiffs’ experts. At least, they did not mention it in their testimony. That being so, plaintiffs were unable to persuade Judge Hartwell that other, nearer combustible material, which was not evidenced in any way except by its necessity to complete the logical chain of plaintiffs’ causation theory, first ignited. The absence of that evidence, and the experts’ failure to hypothesize even a nearby scrap of paper, sufficiently lasting in ignition capabilities to have transmitted fire elsewhere before being itself consumed, no doubt left the trial judge unsatisfied, for clearly articulated reasons, with the verdict.

In these circumstances, though a reading of the record might nearly persuade us of the merit in plaintiffs’ case, our duty is to sustain the trial court in its exercise of discretion to grant a new trial. Cassat Avenue Mobile Homes, Inc., v. Bobenhausen, 363 So.2d 1065 (Fla.1978).

AFFIRMED.

WENTWORTH, J., concurs.

MILLS, C. J., dissents, with opinion.

MILLS, Chief Judge,

dissenting:

I would reverse the order of new trial. The court erred in its conclusion that the jury verdict was not supported by sufficient evidence.

The Yates’ home burned down, and they brought an action against the manufacturer of their furnace (Tappan) and the local company which serviced the furnace (Patterson Heating). The jury found Tappan to be 75% negligent, Patterson Heating, 25% negligent. However, upon motion for new trial and for judgment notwithstanding the verdict, the judge awarded the defendants a new trial, stating in his order:

[Tjhere was no testimony in this record which would indicate, other than by pure conjecture on the part of the jury, that there was any combustible material in the vicinity of the heater. In order to support the plaintiff’s theory, it was necessary for the jury to engage in speculation and conjecture. . . .

Testimony established that the Yates’ house consisted of wood frame built on a cement block foundation. The floor was nailed to the top edges of boards which ran wall-to-wall at the level of the foundation, and the furnace had been suspended under the floor from these joists. Evidence indicated the fire started in the vicinity of the furnace: a fire reconstruction expert and a fire department captain both testified that the furnace appeared to be in the center of the fire pattern. The fire reconstruction expert also said “there was burning underneath the floor ... predominantly in the area surrounding the furnace.”

Based upon the testimony of several expert witnesses, the judge found in his order that a crack in an interior chamber of the furnace permitted flame and extreme heat to escape into the outermost chamber of the furnace. There was also testimony that the aluminum inside the furnace’s exterior wall had melted, indicating a temperature hotter than 1200 °. The fire reconstruction expert stated “there could be a hot spot there that, in my opinion, could ignite combustibles on the outside of the furnace,” and he said that wood is a combustible material which may have an “auto-ignition temperature” as low as 400 ° or 500 °.

Clearly the judge’s order was incorrect, that there was no testimony regarding the presence of combustible material in the vicinity of the furnace. The jurors were told that the furnace was suspended from wood joists and that wood is a combustible material.

Contrary to the position of the majority opinion, there is no “necessity to complete the logical chain of plaintiff’s causation theory,” in order to withstand a motion for judgment notwithstanding the verdict. For purposes of a motion for JNOV, the moving party admits the truth of all facts in evidence most favorable to the party moved against as well as every conclusion or inference that can be reasonably drawn from those facts. Lucas v. Koch Marketing Company, 361 So.2d 194 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1980). Considering the evidence in the light most favorable to the plaintiffs in this case, the jury could have reasonably inferred that the unusual and extreme heat emanating from the furnace started the fire.

A judge may order a new trial if the verdict is against the manifest weight of the evidence, or the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record. Cloud v. Fallis, 110 So.2d 669 (Fla.1956); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). The record must demonstrate the impropriety of the verdict or there must be an independent determination by the trial judge that the jury was influenced by considerations outside the record. Wackenhut at 435, citing Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970).

As the majority opinion points out, the evidence established “the rather obvious possibility” that exposure to the furnace’s extreme heat over a period of time may have caused the joists to catch fire. Because the order does not mention any extra-record influences, there is no indication the jury was deceived as to the force and credibility of the evidence, and the verdict was not contrary to the manifest weight of the evidence, I would reverse.


author: FERGUSON, Judge.

text:
    MERRILL-STEVENS DRY DOCK COMPANY, Appellant, v. “CORNICHE EXPRESS” & owner Myron Wisotsky, Appellee.
    No. 80-1723.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 7, 1981.
    Richard F. Hayes, Coral Gables, for appellant.
    Halpem & Shenberg and Barry Halpern, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The trial court properly entered judgment for defendant in this action to recover on an account stated where there was a dispute as to the performance of plaintiff’s services, the value of the services and whether the services, if performed, were authorized.

For an account stated to exist as a matter of law, there must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Harold R. Clune, Inc. v. Healthco Medical Supply, 433 N.Y.S.2d 52, 78 A.D.2d 914 (1980); Everett v. Webb Furniture Co., Inc., 98 Fla. 780, 124 So. 278 (1929). Cf. Dudas v. Dade County, 385 So.2d 1144 (Fla.3d DCA 1980) (account stated proved by implication); Robertson v. Goethel, 369 So.2d 365 (Fla.3d DCA 1979) (client engaged and accepted services); Breezy Bay, Inc. v. Industria Maquiladora Mexicana, S.A., 361 So.2d 440 (Fla.3d DCA 1978) (impliedly admitted to correctness of invoices); Basic Food Industries, Inc. v. Wackenhut Corp., 323 So.2d 1 (Fla.3d DCA 1975) (defendant failed to prove it had not requested services). The action for an account stated is an action for a sum certain, Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 614 P.2d 862 (1980); Horace Mann Insurance Company v. Casualty Reciprocal Exchange, 383 So.2d 1040 (La. 1980); and where there is no such agreement between the parties, the plaintiff may not recover upon a theory of account stated, Crist Sod Company, Inc. v. Bruce, 599 S.W.2d 43 (Mo.App.1980); Motive Parts Company of America, Inc. v. Robinson, 53 Ill.App.3d 935, 11 Ill.Dec. 665, 369 N.E.2d 119 (1977); Sunshine Dairy v. Jolly Joan, 234 Or. 84, 380 P.2d 637 (1963). Parties who have had a series of dealings with each other may reach a final accounting and agree on a balance due through an account stated, EIMCO-BSP Service Co. v. Valley Inland Pacific Constructors, Inc., 626 F.2d 669 (9th Cir. 1980). After existence of account stated is proved, the account stated may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in equity for the avoidance of an instrument. Gleason v. Klamer, 103 Cal.App.3d 782, 163 Cal.Rptr. 483 (1980).

Here the question is, was there agreement either express or implied giving rise to an account stated. The trial court fount the testimony of Myron Wisotsky that he repeatedly objected to the invoice amounts and the evidence showing that Wi-sotsky had specifically marked the invoices in disagreement as to the amount owed was proof that no agreement amounting to an account stated ever existed between appellant and Wisotsky. See, e. g. Sunshine Dairy v. Jolly Joan, supra. We find there is substantial competent evidence in the record to support the finding of the trial judge and will not disturb his finding on appeal. Basic Food Industries, Inc. v. Wackenhut Corp., supra.

Appellant, having pleaded and attempted to prove liability on a theory of account stated, is not entitled to recovery on another theory. Cooley v. Roman, 286 Or. 815, 596 P.2d 565 (1979).

The court having found no existence of an agreement establishing an account stated, appellant’s claim for attorney’s fees based on the alleged account stated is also denied.

Affirmed.


text:
    Bertha Bates MIDDLETHON, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 80-2224.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied July 31, 1981.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellant.
    Steel, Hector & Davis and Paul J. Bona-via, Miami, for appellee.

      Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   FERGUSON, Judge.

An electric utility company is not liable on theory that they negligently installed and used a concrete pole near the roadway where the undisputed evidence shows the vehicle had collided with another vehicle, veered off the roadway and onto the sidewalk, then struck utility pole. See, e. g., Speigel v. Southern Bell Telephone and Telegraph Company, 341 So.2d 832 (Fla. 3d DCA 1977).

Order dismissing third party complaint with prejudice is affirmed.


author: HENDRY, Judge.

text:
    I. B. L. CORPORATION, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee.
    No. 80-1049.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 7, 1981.
    Rudolph Browd, Miami, for appellant.
    Steel, Hector & Davis and Donald M. Middlebrooks, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

Appellant I.B.L. Corporation brings this appeal from final judgment entered in accordance with a jury verdict in its negligence action arising from a fire which totally destroyed the building housing its operations, which verdict and judgment found for appellee Florida Power & Light Company, defendant below. Appellant first contends that it was error for the trial judge to exclude evidence of a prior occurrence which involved the F.P. & L. transformers located on the utility pole adjacent to appellant’s business premises.

Having made a careful review of the briefs, the record, and in particular the trial transcript in this cause, we conclude that the trial judge’s ruling on this matter was eminently correct, since appellant failed to show sufficient similarity of the conditions, causes and circumstances surrounding both incidents so as to regard the disputed evidence as relevant and material. Perret v. Seaboard Coast Line Railroad Co., 299 So.2d 590 (Fla.1974); Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870 (Fla.1969); Chambers v. Loftin, 67 So.2d 220 (Fla.1953); Warn Industries v. Geist, 343 So.2d 44 (Fla.3d DCA), cert. denied, 353 So.2d 680 (Fla.1977); Auto Specialties Manufacturing Co. v. Boutwell, 335 So.2d 291 (Fla.1st DCA), cert. dismissed, 341 So.2d 1080 (Fla. 1976). In this connection, it was noted by the trial judge that a paramount consideration was that the transformer which was involved in the earlier incident had been replaced prior to the occurrence here in question. The trial judge further stated as grounds for his exclusion ruling the likelihood that this evidence would introduce collateral issues and mislead the jury from the matter directly in controversy, a factor which weighs heavily against the admission of the evidence in question. See Perret v. Seaboard Coast Line Railroad Co., supra; Atlantic Coast Line R. Co. v. Campbell, 104 Fla. 274, 139 So. 886 (1932); Short v. Allen, 254 So.2d 34 (Fla.3d DCA 1971).

As to appellant’s second point on appeal, that it was error to admit in evidence certain photographs taken of the fire scene, we find both that no error is shown on the record and furthermore, that appellant has failed to preserve this point on appeal by timely objection.

The judgment appealed is hereby

Affirmed.