author: OVERTON, Justice. SUNDBERG, Chief Justice, ALDERMAN, Justice,

text:
    Frank Vincent BOVA, Petitioner, v. STATE of Florida, Respondent.
    No. 60382.
    Supreme Court of Florida.
    Feb. 25, 1982.

      Alan H. Schreiber, Public Defender and Peter P. Laporte, Asst. Public Defender, 17th Judicial Circuit, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal, Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980). We find conflict with Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), and accept jurisdiction. The question presented for review is whether the constitutional right to counsel prohibits any restrictions on attorney-client consultation during a trial recess. We hold that a criminal defendant must have access to his attorney during any trial recess, no matter how short the duration, but that the trial court has complete discretion in permitting recesses and in controlling recess duration. Although we disapprove the holding of the instant district court, we find that, under these circumstances, the error was harmless and, consequently, approve the result reached.

The pertinent facts are short and unre-futed. Petitioner was charged and convicted of first-degree murder. At trial, he testified at length in his own behalf. In response to a question asked of him during cross-examination, he expressed that he was confused and asked for a ten-minute break. The trial court granted the request and admonished petitioner and defense counsel, over objection, that they could not confer during the short recess. On appeal, the Fourth District found that this infringement upon petitioner’s attorney-client consultation did not violate the sixth amendment right to counsel and affirmed.

Petitioner urges that the trial court’s action did violate his rights and that we should reverse, applying to the instant facts the reasoning and holdings of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), and Stripling v. State. In Geders, the United States Supreme Court held that an order preventing petitioner from consulting with his counsel during a seventeen-hour overnight recess was violative of sixth amendment protections. Our Third District Court of Appeal in Stripling held the same reasoning applied to a two-hour lunch recess. Petitioner maintains that there is no meaningful distinction where denial of attorney consultation is concerned between an overnight recess, a two-hour lunch recess, and a ten-minute recess which occurs while a defendant is on the witness stand under cross-examination. Each, it is asserted, constitutes a denial of counsel and thus violates the fundamental right to counsel.

The state argues that Geders and Stripling are distinguishable in that the prohibition on consultation in those cases was substantial, an overnight and a two-hour recess. Conversely, at the present trial, petitioner suffered only an insignificant ban on consultation during “a brief recess in the midst of cross-examination.”

In discussing the controlling authority, the instant district court pointed out that some courts have held impermissible even a limited restraint on defense attorney-petitioner consultation. The court said, however, that

Nonetheless, we decline to hold that the minimal restraint imposed by the trial court in this case constituted an abuse of discretion, or was an impermissible impairment of [petitioner’s] Sixth Amendment right to assistance of counsel, or a violation of [petitioner’s] correlative rights under Article I, Section 16 of the Florida Constitution.

392 So.2d at 953-54 (footnote omitted).

We reject this holding and find that no matter how brief the recess, a defendant in a criminal proceeding must have access to his attorney.. The right of a criminal defendant to have reasonably effective attorney representation is absolute and is required at every essential step of the proceedings. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Although we understand the desirability of the imposed restriction on a witness or party who is on the witness stand, we find that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant’s basic right to counsel. Geders. Numerous courts have reached a similar conclusion.

We stress that a defendant in a criminal proceeding is in a different posture than a party in a civil proceeding or a witness in a civil or criminal proceeding. Right-to-counsel protections do not extend to civil parties or witnesses and the trial judge’s actions in the instant case would have been proper if a civil party or witness had been involved.

We also emphasize that the trial court has complete discretion in the granting of and duration of trial recesses. Our cases have long and consistently held that, to ensure orderly proceedings and to protect against unnecessary interruptions, the trial judge is afforded wide latitude in governing the events at trial. The granting of a trial recess is well within his discretion. However, once the court does in fact grant a recess, we find a criminal defendant must be allowed access to counsel.

Having found that the trial court committed error in prohibiting defense counsel-petitioner consultation, we now consider the effect and any possible prejudice which resulted to petitioner. Citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the district court determined, in the alternative, that no prejudice resulted from the trial court’s disal-lowance of a conference with his counsel. 392 So.2d at 954 n.l. We agree. From our complete review of the record, we find that the evidence of petitioner’s guilt was overwhelming. Petitioner has shown no actual prejudice and we are satisfied beyond any reasonable doubt that the brief restraint on defense consultation did not contribute to the jury’s finding petitioner guilty. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman; Knight v. State, 394 So.2d 997 (Fla.1981). We conclude that the trial court’s error was harmless.

Accordingly, we disapprove the decision of the district court as to the attorney-client consultation issue, but, because we find the error harmless, approve the result.

It is so ordered.

ADKINS, BOYD and McDONALD, JJ., concur.

ALDERMAN, J., concurs in result only with an opinion.

SUNDBERG, Chief Justice,

concurs in part and dissents in part:

“I concur that restriction on the petitioner’s right to consult with counsel was an abridgment of his Sixth Amendment right to assistance of counsel. I dissent from the holding of the majority that this error was harmless. Geders v. United States, 425 U.S. 80 [96 S.Ct. 1330, 47 L.Ed.2d 592] (1976).”

ALDERMAN, Justice,

concurring in result only.

Assuming arguendo that the restraint imposed in this case was constitutionally impermissible, I am satisfied beyond a reasonable doubt that that error was harmless.

I do not agree, however, that there was a constitutionally impermissible restraint. As concluded by the district court, inasmuch as the trial court may structure the proceedings so as to prevent attorney-client consultation during cross-examination, the court’s discretion is sufficiently broad to achieve the same end by imposing a restraining order during a brief recess. As long as the curtailment of communication is brief and necessary to the administration of justice, it is constitutionally tolerable. The district court correctly noted:

[T]he trial judge in the case at bar was especially sensitive to the issue of attorney-client consultation. The court provided an opportunity for consultation pri- or to defendant’s direct examination, and, before the incident giving rise to this appeal, agreed to arrangements so that defense counsel could meet with the defendant in a holding cell during the luncheon recess. It is also well to recall that the court exercised its discretion and acceded to defendant’s request for a brief recess so that he might collect his thoughts. Having obtained this sought-for-benefit, defendant cannot complain of a reasonable limitation. To hold otherwise would encourage a party to attempt to sow reversible error into the record.

Bova v. State, 392 So.2d 950, 955-56 (Fla. 4th DCA 1980).

I agree with the district court that there was no abuse of discretion on the part of the trial court in not allowing the defendant to talk with his attorney during a brief recess requested by the defendant in the midst of cross-examination. Accordingly, I would approve the decision of the district court, and I concur in the affirmance of the defendant’s conviction.

      . See art. V, § 3(b)(3), Fla.Const.

      . See U.S.Const. amend. VI; art. I, § 16, Fla. Const.

      . 392 So.2d at 953.

      . See, e.g., United States v. Conway, 632 F.2d 641 (5th Cir. 1980); Jackson v. United States, 420 A.2d 1202 (D.C.Cir.1979) (en banc); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976); United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977); People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96 (1969); Pendergraft v. State, 191 So.2d 830 (Miss. 1966); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967).

      . Rose v. Yuille, 88 So.2d 318 (Fla.1956); Parrish v. State, 90 Fla. 25, 105 So. 130 (1925); Wilson v. Johnson, 51 Fla. 370, 41 So. 395 (1906); Jenkins v. State, 31 Fla. 196, 12 So. 677 (1893).


source: Caselaw Access Project

author: McDONALD, Justice. BOYD, Justice,

license: Public Domain

text:
    STATE of Florida, Appellant, v. LEON COUNTY, FLORIDA, Appellee.
    No. 61359.
    Supreme Court of Florida.
    Feb. 25, 1982.

      Donald S. Modesitt, State Atty., for the Second Judicial Circuit, Tallahassee, for appellant.
    F. E. Steinmeyer, III, County Atty., and Hugh M. Taylor and Elise F. Judelle of Bryant, Miller & Olive, Tallahassee, for ap-pellee.
   McDONALD, Justice.

The state appeals a trial court order validating the issuance of certain industrial development revenue bonds. We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution, and affirm the final judgment.

In June 1981 the Tallahassee City Commission passed a resolution declaring part of Tallahassee to be a blighted area as defined by section 163.340(8), Florida Statutes (1979). In August 1981 the Leon County Commission passed a resolution, pursuant to chapter 159, part II, Florida Statutes (Supp.1980), and chapter 163, part III, Florida Statutes (1979), authorizing the issuance of not more than $10,000,000 of industrial development revenue bonds for the purpose of financing part of the acquisition and construction cost of a privately owned 300-room convention center hotel and related facilities. The proposed site is within the blighted area and is directly across the street from the newly constructed city-county civic center.

The trial court confirmed and validated the bonds, finding, among other things, that the resolution had been properly adopted, that the bonds would not constitute a public debt, that the criteria set out in section 159.29 had been met, and that the project would serve a paramount public purpose. The state raises three issues on appeal: (1) a public lodging facility does not serve a paramount public purpose and is not an industrial or manufacturing plant; (2) a nonjudicial body’s determination of whether statutory requirements have been met cannot be final and conclusive; and (3) the failure to allege the interest rate as required by subsection 75.04(1), Florida Statutes (Supp.1980), makes the complaint fatally deficient. We find no merit to any of these points.

The instant project falls within the definition of a “commercial project in a designated slum area or blighted area.” § 159.27(19). We agree with the circuit court’s conclusion that this project serves a paramount public purpose in the elimination of blight. This is the same public purpose as provided for in chapter 163, part III, which this Court upheld in State v. Miami Beach Redevelopment Agency, 392 So.2d 375 (Fla.1980).

Section 159.29 states that “the determination of the local agency as to compliance with [this section’s] criteria and requirements shall be final and conclusive.” This Court has acceded to this statement in numerous cases. State v. City of Riviera Beach, 397 So.2d 685 (Fla.1981); State v. Jacksonville Port Authority, 266 So.2d 1 (Fla.1972); State v. County of Dade, 250 So.2d 875 (Fla.1971). We agree with the state that such findings and conclusions are subject to judicial review, but nothing has been presented which requires disturbing the findings of the agency and the circuit court.

The state’s third claim is that subsection 75.04(1) requires an agency’s complaint seeking bond validation to set out the interest rate the subject bonds are to bear. We find that the trial court correctly concluded that the county’s failure to state a finite, specific rate of interest was not fatal to this bond program. We disagree, however, with the trial court’s reasoning that section 159.-34 must be read in pari materia with section 215.34, Florida Statutes (Supp.1980), in order to reach this conclusion.

Subsection 215.84(3) sets out a formula for calculating the maximum allowable interest rate which certain governmental bonds may bear. Subsections 215.84(2)(b)2 and (7), on the other hand, specifically exclude bonds issued under part II of chapter 159. The county issued the instant bonds under the authority of chapter 159, part II, and we find section 215.84 inapplicable to the instant case.

Subsection 159.34(1), as amended in 1980, provides that bonds “shall bear interest at such rate or rates, including variable rates, notwithstanding any limitation in other laws relating to the maximum interest rate permitted for bonds ... as may be determined or provided for by the local agency.” In view of this language, we can find no legislative intent that would mandate reading subsection 75.04(1) to require the complaint to state a finite, specific rate of interest for the issuance of industrial bonds as long as the complaint sets forth the method by which the interest will be determined.

The county resolution authorizing these bonds states that they shall bear a rate of interest “not to exceed the maximum allowed by Florida law, as shall be provided by subsequent resolution of the Issuer at or prior to the sale of the Bonds.” Leon County, Fla., Resolution to Finance Constructing a Capital Commercial Project, § 6 (Aug. 11, 1981). The complaint does not set out a specific rate of interest but, rather, follows the resolution and says that the rate will be that rate set by resolution prior to sale of the bonds. The state contends that there is no “maximum allowed by Florida law,” and we agree. As discussed above, section 215.84 does not apply to these bonds, and we can find no other statutory maximum applicable to these bonds. Indeed, by its language, subsection 159.34(1) leaves setting the rate to the local agency. We assume that the legislature has so provided in order to take into account the prevailing high and fluctuating interest rates so that local agencies can compete in the bond market. We agree with the trial court that the county’s statements in the resolution and complaint are sufficient and that a specific interest rate need not be alleged or proved in this validation.

Affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OYER-TON, ALDERMAN and EHRLICH, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissent from the affirmance of the decree of validation because the proposed project does not serve a paramount public purpose and therefore may not be financed by bonds issued by a governmental body. Such financing of a private business is forbidden by article VII, section 10, Florida Constitution.

A capital project, part of an urban redevelopment plan under chapter 163, part III, Florida Statutes (1979), may be found eligible for public bond financing (provided the bonds are payable only from revenue produced by the facilities financed) when it serves a paramount public purpose. A project may be found to serve the public purpose of urban redevelopment, even though a substantial portion of the physical assets financed will end up in private hands. State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980). One hotel, however, does not constitute an urban redevelopment plan. The proposed hotel in the present case is an industrial development project under chapter 159, part II, Florida Statutes (Supp.1980), and it cannot be bootstrapped into constitutional validity by reference to the Community Redevelopment Act. The hotel project must be examined, for constitutional purposes, on its own merits.

Under article VII, section 10, Florida Constitution, a capital project must serve a paramount public purpose (and must be self-liquidating) in order to be eligible for industrial development revenue bond financing. Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763 (Fla.1978); Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971). If the project to be financed is purely a profit-making facility to be sold or leased to private enterprise and then privately operated for profit, it does not serve a paramount public purpose. State v. Jacksonville Port Authority, 204 So.2d 811 (Fla.1967); State v. Town of North Miami, 59 So.2d 779 (Fla.1952). Such a project may only be financed by public bonds if specifically allowed by one of the exceptions in article VII, section 10. The only possibly applicable exception is found in subsection 10(c), and it requires the project to be an industrial or manufacturing plant. It is clear that the proposed project, a hotel, does not come within the exception.

The majority opinion is unclear as to the precise constitutional justification for bonded financing of the proposed hotel project. It is suggested that the public purpose is the elimination of blight but reference is also made to the project’s proximity to the civic center. The implication of the latter reference is that the hotel will be utilized by the public in connection with events held at the civic center. No one is suggesting, however, that the proposed hotel will be the only one used in connection with the civic center, nor that all the hotel’s guests will be patrons of civic center events. The Industrial Development Financing Act only explicitly authorizes financing of lodging facilities as appurtenant parts of other public projects. It was never the intent of the legislature to bestow the benefit of public financing on some hotel operators while denying it to others. Such would be a departure from principles of equality before the law.

The majority opinion cites no authority, and the proponents have cited none, that clearly shows why we are free to ignore the plain language of section 75.04(1), Florida Statutes (1981), which provides, “The complaint shall set out ... the amount of the bonds or certificates to be issued and the interest they are to bear.”

I find that the proposed project is not authorized by the statute. If indeed the legislature intended to authorize public financing of this project, it has overstepped the limitations imposed by article VII, section 10, and the statute is to that extent unconstitutional. The decree of validation should be reversed.

      . Florida Industrial Development Financing Act, §§ 159.25 — 159.431.

      . Community Redevelopment Act of 1969, §§ 163.330 — 163.450.

      . We see this as part of this Court’s function in reviewing bond validations to determine whether the issuing agency had the power to act and whether it exercised that power in accordance with law. See State v. Leon County, 400 So.2d 949 (Fla.1981).


author: PER CURIAM.

text:
    Albert Edward STROEMER, Appellant, v. STATE of Florida, Appellee.
    No. 80-259.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 1981.
    Jerry Hill, Public Defender, Bartow and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Albert Edward Stroemer, pro se.
    Jim Smith, Atty. Gen., Tallahassee and Eula Tuttle Mason and Deborah A. Os-mond, Asst. Attys. Gen., Tampa, for appel-lee.
   PER CURIAM.

Albert Edward Stroemer appeals his convictions and consecutive 99-year sentences for two sexual batteries and four robberies and the trial court’s retention of jurisdiction over the first third of each sentence pursuant to section 947.16, Florida Statutes (1978). We reverse the retention of jurisdiction, but otherwise affirm.

Because the offenses in question were committed on March 31, 1977, and section 947.16 did not become effective until June 19, 1978, the application of the statute to appellant’s sentences was ex post facto and therefore violative of his constitutional rights. State v. Williams, 397 So.2d 663 (Fla.1981); Rodriguez v. State, 380 So.2d 1123 (Fla. 2d DCA 1980).

We find no merit to the other points raised by appellant.

Accordingly, the trial court’s order retaining jurisdiction for the first third of appellant’s sentences is vacated. The cause is remanded for correction of the Uniform Commitments to Custody of the Department of Corrections. The judgments and sentences, since they made no reference to retention of jurisdiction, are affirmed as rendered.

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


text:
    David L. BOESE, Appellant, v. STATE of Florida, Appellee.
    No. 81-339.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1982.

      Charles E. Thomson, Pinellas Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. This affirmance is without prejudice to appellant seeking the proper credit for time served by filing the proper motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

SCHEB, C. J., and RYDER and SCHOONOVER, JJ., concur.


author: ERVIN, Judge.

text:
    Alceo VIDAL, Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. AD-193.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Rehearing Denied April 1, 1982.
    Jose G. Rodriguez of Johnson & Bakst, West Palm Beach, for appellant.
    Stanley M. Danek, Tallahassee, for appel-lee.
   ERVIN, Judge.

Vidal appeals a final order of the State Retirement Commission finding that the appellant lost all his rights under his SCOERS plan, Chapter 122, Florida Statutes, by virtue of his transfer on December 1, 1970 to the Florida Retirement System (FRS), Chapter 121, Florida Statutes, due to the effect of the legislature’s enactment of Section 121.011(3)(f), Florida Statutes (1979). The Retirement Commission held that Chapter 121 applied to the appellant, which required him to establish that he was totally and permanently disabled. Vidal contends that the Commission erred in that Section 121.011(3)(f) is not applicable to his transfer, or if applicable, the effect of the statute impaired his contractual or vested rights. We agree with the appellant as to the former point, and therefore reverse without addressing the constitutional question.

The appellant, a career law enforcement officer with the Palm Beach County Sheriff’s Department, was a member of SCOERS, Chapter 122, Florida Statutes, since 1962. Sometime in 1970, he signed a computer card, purportedly applying for a transfer to the Florida Retirement System (FRS), Chapter 121, effective December 1, 1970. He was terminated from employment on November 16, 1977, due to partial disability resulting from a gunshot wound sustained in the line of duty on September 4, 1975, and on October 5, 1978, he applied for in-line-of-duty retirement. The appellant’s partial disability was never an issue at the hearing below.

The appellant’s rights under SCOERS, upon his transfer on December 1, 1970, were preserved by Section 121.011(3)(a), Florida Statutes (1970), providing:

The rights of members of the retirement systems established by Chapters 122, 238, and 321 shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter, except that if an eligible member of a retirement system established by Chapters 122, 238, or 231, elects between April 15, 1971 and June 1, 1971, inclusive, to transfer to the Florida Retirement System, he shall be transferred to the Florida Retirement System on June 1, 1971 and shall be subject to the provisions of the Florida Retirement System established by this chapter and at retirement have his benefits calculated in accordance with the provisions of Section 121.091.

(e.s.)

The appellant’s rights in the system were declared to be of a contractual nature as of July 1, 1974. Section 121.011(3)(d), Florida Statutes. In December, 1978, we held in Seward v. Department of Administration, 366 So.2d 82 (Fla. 1st DCA 1978) that employees who transferred on December 1, 1978 did not waive any rights under SCOERS; that the plain meaning of Section 121.011(3)(a) provided that the waiver only applied to those who transferred from April 15 to June 15, 1971.

Subsequently, in 1979 the legislature added Section 121.011(3)(f) which provides:

The rights under an existing system of any former member of such system who has become a member of the Florida Retirement System, either by an affirmative choice during any transfer period or by operation of the compulsory participation provisions of s. 121.051(1), are limited to those rights that existed and were exercised in such system at the time participation in the system ceased. The rights of such member after transfer shall be subject to the provisions of the Florida Retirement System established by this chapter, and at retirement the member shall have his benefit calculated in accordance with Section 121.091. The provisions of this paragraph are declaratory of the legislative intent upon the original enactment of this chapter and are hereby deemed to have been in effect from such date.

(e.s.) The key language in this statute is the phrase “any transfer period[s].” The legislature, subsequent to 1971, has specified other optional transfer periods in Section 121.051(2), Florida Statutes. It has, however, never identified December 1, 1970 as a transfer period. The transfers made on December 1, 1970 were made by the Department of Administration without express legislative authorization. Florida Administrative Rule 22B-1.04(3)(a) obliquely refers to optional transfers as those made available by an act of the legislature. We therefore consider that the phrase “any transfer period” means only those transfer periods expressly specified by the legislature and therefore, Section 121.011(3)(f) is inapplicable to the instant case.

REVERSED with directions that the Division compute Vidal’s retirement benefits under the SCOERS plan.

McCORD and SHAW, JJ., concur.


text:
    RUCK'S BROTHERS DAIRY and Florida Farm Bureau Insurance Company, Appellants, v. Bobby G. HOWARD, Appellee.
    No. YY-142.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Rehearing Denied April 1, 1982.
    Thomas A. Koval of Jones, Foster & Moss, Vero Beach, for appellants.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

This is an appeal from a compensation order finding claimant’s hernia and epidi-dymitis to be causally related to an industrial accident on April 5, 1979, and awarding claimant TTD benefits, based on an average weekly wage of $208.07. One point raised on appeal merits discussion.

In arriving at a figure for claimant’s average weekly wage, the deputy commissioner properly took into account the value of benefits provided to claimant by his employer such as free housing and utilities. Jess Parrish Memorial Hospital v. Ansell, 390 So.2d 1201 (Fla. 1st DCA 1980). However, it appears from the record that the employer continued to provide claimant with these fringe benefits up until March of 1980. We can find no support in the record for the statement in appellee’s brief that the benefits were actually being provided to claimant’s wife and brother, as compensation for their services, after the date of claimant’s accident. Claimant testified that his wife was not an employee of the dairy. The only reference to claimant’s brother’s work status was that on several occasions he worked for claimant when claimant was physically unable to complete the shift. This does not constitute competent, substantial evidence to establish that the benefits were not being supplied to claimant. Insofar as the compensation order fails to permit the employer/carrier to take a credit for the benefits provided claimant after the date of the accident, it is REVERSED. In all other respects, the order is AFFIRMED.

AFFIRMED in part and REVERSED in part.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Hector LOPEZ, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AF-37.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.
    Steven M. Malone of Patterson & Trayn-ham, Tallahassee, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Lopez challenged Rule 23-19.05 F.A.C. in a proceeding under § 120.56 Fla.Stat. (1979). The challenge was denied. We affirm.

Lopez was convicted of second degree murder in 1977. At that time parole consideration was in the discretion of the Parole and Probation Commission, § 947.16 Fla.Stat. (1977). Pursuant to § 947.165 Fla. Stat. (1979) the Commission enacted objective parole guidelines effective 20 March 1979. Under these guidelines a prisoner convicted of second degree murder with Lopez’s low offender characteristic would have been considered for parole under a matrix time of 18-33 months. Effective 25 June 1979 the Commission amended the rule so that the matrix time applicable to Lopez was 60-84 months. Lopez was interviewed for parole consideration on 19 July 1979, and his presumptive parole release date was set for 1 May 1984, applying the June rules. Lopez now challenges the amendment of Rule 23-19.05 F.A.C., contending that the March rules should have been used.

Lopez makes two arguments which require discussion. First, he argues that the Commission exceeded its authority by not complying with § 947.165 Fla.Stat. (1979) in not assembling statistical data to determine the need for change or the appropriate changes to make. Second he argues that increasing the matrix times is unconstitutional as a violation of the ex post facto clause.

The Commission relied on its collective experience in the area of parole release dates when it enacted the June amendments. Several months use of the March rules had convinced the Commissioners that the original times were too low. Section 947.165(2) Fla.Stat. (1979) provides that “the Commission shall ... make any revisions considered necessary by virtue of experience.” This is exactly what the Commission did in this case and is clearly within the legislative guidelines. The section goes on to direct the Department of Corrections to provide necessary data to the Commission for rule revision. This, by its plain language allows but does not require the obtaining of data before revisions.

Lopez contends that the alteration of the matrix times is a change in the law which increases the punishment for his crime and this is illegal, Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Under the facts of our ease we are convinced that Lopez’s punishment is not increased by the amendment of the PPRD guidelines. At the time of Lopez’s crime, the only expectation that Lopez had regarding parole was that it would be at the discretion of the Commission. The adoption and amendment of objective guidelines is a procedural change which, if anything, is ameliorative, cf. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

AFFIRMED.

MILLS and WENTWORTH, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.


author: DELL, Judge.

text:
    Robert Charles KAELIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-29.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied March 31, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellant appeals his conviction on five counts of sexual battery. We affirm.

The victim, Claire, is a thirty-two year old mentally retarded woman. She is afflicted with cerebral palsy and a severe hearing deficiency. She has an IQ of fifty-four and the sign language ability of a six to eight year old child. Her ability to speak is also extremely limited.

Prior to trial, a hearing was conducted on defendant’s motion to exclude Claire as a witness. The trial court found that she was capable of communicating but determined that her language deficiencies precluded effective cross examination. The court deferred ruling on the motion so that she would have an opportunity to enhance her communicative ability. To this end, appellant’s expert, Dr. Dunstall, recommended that Bill Cohn assist Claire in improving her language skills. Mr. Cohn spent approximately fourteen hours over the course of several weeks working with Claire. Thereafter, based upon such improvement, the motion to exclude Claire as a witness was denied. Mr. Cohn thereafter served as her interpreter during trial.

Three points are raised on appeal. First, appellant asserts that the court erred in finding Claire competent to testify. Second, it is argued that Bill Cohn was unqualified to act as her interpreter. Lastly, appellant contends that the trial court erred in denying a mistrial following three exclamations by Claire’s mother, while testifying, to the effect of “It hurts.” We find no merit in this last claimed error.

We have carefully reviewed the transcript of 'the proceedings below. Both parties have requested that we review video tapes of Claire’s testimony. We decline to do so. The record more than adequately depicts the evidence considered by the jury. Moreover, it is the function of the trial judge, whose observations are firsthand, to determine the competency of a witness to testify. The prerequisites of competency have been universally recognized. A witness must have sufficient intelligence to understand the nature and obligations of the oath and the ability to perceive, remember and narrate the incident. Powell v. State, 373 So.2d 73 (Fla. 1st DCA 1979).

We will first consider the issue of Mr. Cohn’s qualifications to act as Claire’s interpreter. Although Cohn was not Board certified, he was an experienced interpreter for the deaf. He is certified by the National Registry of Interpreters for the Deaf. He has considerable experience teaching sign language to retarded and the blind deaf persons. Furthermore, Cohn has been qualified as an interpreter for deaf persons in court proceedings and has acted as such on numerous occasions. While not an expert on official American sign language and interpretation for the deaf in general, even appellant’s expert, Dr. Dunstall, agreed that Cohn’s work with Claire gave him special insight and understanding as to her manner of communicating. It is true that Dr. Dunstall did not consider Cohn qualified to interpret for Claire. She testified that she disagreed with many of the interpretations put forth by Cohn. However, such disagreement went only to the weight accorded Claire’s testimony, not to its admissibility. Dr. Dunstall’s main objection to Cohn’s qualifications was that he did not possess a “legal skills certificate” which signifies Board certification. This fact is insufficient to disqualify Cohn. Board certification has never been held as a prerequisite for expert status. See Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981); Kelly v. Kinsey, 362 So.2d 402 (Fla. 1st DCA 1978). The trial judge, after extensive inquiry, was satisfied with Cohn’s ability to serve as an interpreter for Claire and the record does not establish that this decision was an abuse of discretion. See Section 90.606, Florida Statutes, Law Revision Council Note (1976).

We now turn to the issue of Claire’s competency to testify. This question is by no means clear. Undeniably, Claire has a very low intelligence quotient, and intelligence is a primary component of witness competency. Bell v. State, 93 So.2d 575 (Fla.1957). Additionally, we recognize that Claire’s other handicaps severely strain opportunity for effective cross-examination. However, we cannot conclude, on the record before us, that allowing Claire to testify was an abuse of discretion. As limited as she was, Claire was nevertheless able to •relate the circumstances of the assaults upon her with sufficient clarity and decisiveness so that her testimony was properly submitted to the jury. Claire was firm in her identification of appellant as her assailant. She was likewise consistent in her description of the assaults. We have no doubt that the defense of appellant was made more difficult by the limitations of Claire’s communicative ability. Yet the record is clear that “a comprehensible narrative does emerge from the sum of her testimony.” United States v. Benn, 476 F.2d 1127 (D.C.Cir.1973).

Competency to testify is established when a witness has sufficient understanding to comprehend the obligations of the oath and is capable of giving a correct account of the matters which the witness has seen or heard relative to the question at issue. A case similar to that sub judice is People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358 (1976). In that case, a sixteen year old, mentally retarded girl was sexually assaulted three times during a four month period by her school bus driver. The victim had an IQ of seventy-three and mental development similar to that of a twelve or thirteen year old girl. The appellant alleged that she was incompetent to testify. The Court responded:

The test is whether the prospective witness “has sufficient intelligence to understand the nature of an oath and to give a reasonable, accurate account of what he has seen and heard, vis-a-vis the subject about which he is interrogated... The resolution of the issue of witness competency is exclusively the responsibility of the trial court, subject to limited appellate review. It is the trial judge who has the opportunity to view the witness, to observe manner, demeanor and presence of mind, and to undertake such inquiries as are effective to disclose the witness’s capacity and intelligence. . .. Impressions that may be validly drawn only from close hand personal observation cannot be “photographed into the record” for later study by appellate courts. (Emphasis added).

The record amply demonstrates that the’ trial judge closely observed Claire’s interrogation and was satisfied that she was competent to testify.

We do not find that Claire was so deficient because of her afflictions and mental infirmity that the admission of her testimony was a clear abuse of discretion. Accordingly, the judgment and sentence of the trial court is affirmed.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Steven Robert TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. VV-50.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Rehearing Denied April 1, 1982.

      Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

After a jury trial, appellant was found guilty of battery on a law enforcement officer. Three points raised on appeal merit discussion. First, whether the victim could be considered a law enforcement officer at the time of the offense. Second, whether the court erred in denying appellant’s requested instruction on self-defense. Third, whether the court erred in denying appellant’s requested instruction on penalties.

At trial, the evidence presented established that Clark, a deputy sheriff, resided in an apartment complex rent-free for acting as the security guard for the complex. Clark was awakened at approximately 3:00 A.M. on the date of the offense due to a disturbance created by several intoxicated persons congregating in the parking lot of the complex. Clark called the sheriff’s office reporting the disturbance. Clark then, in plain clothes, approached the group, identified himself as a police officer showing his badge, and told the crowd to disperse. While returning to his apartment, Clark heard appellant curse him. Clark returned to appellant and asked for some identification. Appellant failed to produce any identification and was belligerent. Clark then decided to place appellant under arrest for making threats and disorderly intoxication. A scuffle ensued where Clark was struck in the throat and chest by appellant. Clark subdued appellant and turned him over to the sheriff’s officers when they arrived.

Appellant’s contention that at the time of the incident Clark was acting in his private capacity as a security guard and thus cannot be considered to be a law enforcement officer has been resolved against appellant in the factually similar case of Hughes v. State, 400 So.2d 533 (Fla. 1st DCA 1981). Here, as in Hughes, once the officer identified himself as a deputy sheriff and attempted to make an arrest, he was engaged in the exercise of police authority. A battery committed upon an officer in such a situation constitutes battery on a law enforcement officer.

Appellant next contends that it was error for the trial court to deny his request that the self-defense instruction be given with regard to the charge of battery on a law enforcement officer. The State argued, and the trial court agreed, that a jury instruction of self-defense on this charge would have been improper because Florida Statute § 776.051 prohibits the use of force in resisting an arrest by a known law enforcement officer. There is substantial case law which would support a reversal on this issue.

There is a right to a self-defense instruction when there has been sufficient evidence presented to support it. Kilgore v. State, 271 So.2d 148 (Fla. 2nd DCA 1972). A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery. Taylor v. State, 301 So.2d 123 (Fla. 4th DCA 1974); Redondo v. State, 380 So.2d 1107, 1111 (Fla. 3rd DCA 1980). In Monroe v. State, 384 So.2d 50 (Fla. 2nd DCA 1980), the court held that when a defendant testified that he did not know the alleged victim of the battery was a police officer he was entitled to a requested instruction on the defense of others. In Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), this court held that a person is entitled to defend himself against unlawful or excessive force even when being arrested.

However, we question whether the defendant properly requested the instruction in the present case. Rule 3.390(c), Florida Rules of Criminal Procedure, provides that any party may file written requests that the court instruct the jury on the law as set forth in the requests. The record on appeal contains the special jury instructions requested by the defense and there is no written request that the jury be instructed on self-defense. The failure to properly present the request to the trial court would preclude appellate review on this issue. However, in light of our disposition of the final point raised by appellant, we find it unnecessary to rule on this point.

Finally, appellant contends that the trial court’s denial of a requested instruction on the maximum and minimum sentences which may be imposed constitutes error. We note that the request for the instruction on penalties was orally made. However, a request for a charge on maximum and minimum sentences is addressed by the Florida Rules of Criminal Procedure in a separate subsection from that which requires other instructions to be in writing. The portion of the rule directed to this charge provides that upon the request of either the State or the defendant the judge shall include in the charge the maximum and minimum sentences which may be imposed for the offense for which the accused has been on trial. Fla.R.Crim.P. 3.390(a). In the present case, the defendant did request the charge include this information and an objection to the denial of the request was made. When a defendant makes a timely request for such an instruction, it is reversible error for the trial judge to omit that instruction. Tascano v. State, 393 So.2d 540 (Fla.1980). Hubbard v. State (Fla. 1st DCA, opinion filed February 23, 1982). Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

McCORD and SHIVERS, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting:

I would affirm the judgment of conviction below.


author: LARRY G. SMITH, Judge. ERVIN, Judge, specially

text:
    Peter Steven BIZZIGOTTI, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. YY-132.
    District Court of Appeal of Florida, First District.
    March 15, 1982.

      Peter Steven Bizzigotti, pro se.
    No appearance for appellee.
   LARRY G. SMITH, Judge.

Bizzigotti appeals the circuit court’s dismissal of his petition for writ of mandamus for failure to state a cause of action. We have determined that the petition discloses improper action by the Florida Parole and Probation Commission in its use of aggravating factors to extend appellant’s presumptive parole release date (PPRD). We reverse.

In its response to appellant’s petition for writ of mandamus, appellee acknowledged its possible error in using “burglary” as the present offense of conviction as an aggravating factor adding nineteen months to appellant’s PPRD. As appellee correctly concluded, the objective parole criteria guidelines make “the present offense of burglary a factor to be used in computing the salient factor score, and it cannot be used again as an aggravating factor to extend the PPRD. Consequently, after filing its initial response to appellant’s petition, the Commissioner further reviewed appellant’s PPRD and eliminated the nineteen-month aggravation for burglary. However, instead of revising the PPRD to reflect an earlier date, the Commission added a new aggravation of nineteen months. In an addendum to its return to the order to show cause issued by the circuit court, the Commission reported this action to the circuit court, citing Rule 23-19.04(l)(h), “Ancient Prior Record,” as the basis for its action. According to the Commission, appellant’s convictions more than ten years ago, which were not used in calculating the salient factor score, and a subsequent conviction for possession of drugs and hit and run with injury, convinced the Commission of appellant’s poor parole prognosis justifying the addition of nineteen months to his PPRD.

The procedure followed by the Commission has been condemned by this court in McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). Appellant’s PPRD was established by Commission action prior to appellant’s filing of his petition for writ of mandamus in the circuit court. This date became binding on the Commission under Section 947.172(3), Florida Statutes (1979). McKahn, 399 So.2d at 478. The statutes permit changes in the PPRD only under narrowly circumscribed conditions, those being “for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview,” neither of which have been shown to apply here. Id. at 478. Nor do we find any basis for the Commission to invoke the provisions of Section 947.173(3), permitting modification of a PPRD “for good cause in exceptional circumstances.” See Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

We next consider the twelve-month aggravation applied by the Commission (though not recommended by the examiner) in its initial PPRD decision,. explained as follows on the Commission action form: “Upon apprehension offender refused to provide information which may have resulted in recovery of large jewelry loss.” In his petition for writ of mandamus appellant asserted that he has maintained his innocence and ■ has remained silent from the time of his apprehension, throughout his trial by jury, and to this date. Therefore, appellant urges, the Commission’s action is in derogation of his right to remain silent under the Fifth Amendment, United States Constitution, and Article I, Section 9, Florida Constitution. Furthermore, petitioner alleged and the record of the Commission’s action verifies, that upon receipt of appellant’s application for review under Section 947.173, Florida Statutes, the Commission gave no further particularities or explanation concerning the basis for the twelvemonth aggravation.

We agree with appellant’s contention that the Commission’s consideration of his failure to provide information “upon apprehension,” as a basis for extension of his PPRD, would amount to the exaction of a penalty for the exercise of his Fifth Amendment right to remain silent. We can see no reason why the exercise of rights fully protected under the Fifth Amendment, as interpreted in Miranda, and subsequent decisions, should subject an offender to a penalty after conviction any more than would the exercise of the right to trial by jury, suppression of evidence illegally seized under the Fourth Amendment, representation by counsel, or the assertion of other constitutional rights. These allegations were sufficient to entitle appellant to relief by way of mandamus, and it was error to dismiss his petition. Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

The Commission cites Nelson v. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960), in opposition to appellant’s constitutional claim, asserting that the Fifth Amendment does not prohibit “potential civil repercussions” as a consequence of remaining silent, so long as the exercise of that right is not determinative of criminal guilt or innocence. We do not read Nelson as dispositive in this case. In Nelson, the court made it abundantly clear that California’s statute, under which a state employee was discharged, was not predicated upon any “ ‘built in’ inference of guilt” arising from invocation of the right to remain silent, but solely on employee insubordination for failure to give information the state had a legitimate interest in securing. Id. at 7, 80 S.Ct. at 531. In other words, California did not employ a Fifth Amendment refusal to testify “as the basis for drawing an inference of guilt.” Id. at 7, 80 S.Ct. at 531. The limitation upon the use of silence on the part of an accused as an inference of guilt, in non-criminal proceedings, was further reiterated in the more recent case of Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). There the court held that while it is permissible to draw an inference of guilt from an inmate’s failure to testify in a prison disciplinary proceeding, guilt cannot be made to rest solely upon silence, but must be established by other evidence. Id. at 317, 96 S.Ct. at 1557.

To fault the Commission for its improper use of appellant’s silence “when apprehended,” however, is not to say that the Commission has no legitimate interest in the fact that a “large jewelry loss” occurred, or that appellant had the knowledge or ability to aid in its recovery, but failed to do so. The Commission’s Rule 23-19.-03(l)(a)2 specifically provides for consideration of “great .. . pecuniary loss,” and Rule 23-19.03(l)(c)l, “failed or refused to make restitution where he was able to do so,” as aggravating circumstances. Under appropriate facts, we have no doubt that the use of these factors would be proper. See White v. Florida Parole and Probation Commission, 394 So.2d 472 (Fla. 4th DCA 1981); Roberts v. United States, supra, footnote 9.

Nevertheless, due primarily to procedural deficiencies contributed to by both parties, we have encountered some difficulties in arriving at a solution in the case before us. We observe, first, that the Commission’s reference to a “large jewelry loss,” coupled with the charge that appellant refused to provide information that might have led to its recovery, could conceivably, under either of the rules just mentioned, provide a rational basis for a PPRD outside the matrix time frames. However, the Commission has not attempted to relate its action to either of these rules; and the Commission’s conclusory recitation explaining the aggravation does not offer any clue to the source or reliability of the facts assumed, and does not indicate at what point in the history of appellant’s criminal prosecution, sentence, and incarceration, other than “upon apprehension,” he was given an opportunity to provide helpful information.

Secondly, while appellant has appropriately challenged, on constitutional grounds, the Commission’s reliance on his silence “upon apprehension” as grounds for aggravation, he has not questioned the factual accuracy of the Commission’s reference to the large jewelry loss, nor has he directly disputed the inference that he has refused to divulge facts within his knowledge that could possibly have led to recovery of the jewelry.

The crux of the matter is that the Commission has failed to comply with Sections 947.172(2) and (3), as well as Rule 23-19.03, in that it has not provided an adequate “written explanation” for the twelve-month aggravation. On the other hand, except for the challenge on constitutional grounds, appellant has not availed himself of the opportunity to respond to the Commission’s factual assumptions embodied in the aggravation, although he had the opportunity and obligation to do so in his review request under Section 947.173. See footnote 10.

While we expressly reject the use of pre-conviction silence alone as an aggravating factor, we are of the opinion that an inmate’s post-conviction conduct, including the inmate’s failure to provide information which would or could possibly alleviate the injury flowing from his criminal actions, if shown by competent evidence to be within both his knowledge and ability, may appropriately be considered by the Commission as an aggravating circumstance to extend the PPRD beyond the matrix time frame. Roberts v. United States, supra. In such cases, no penalty can be exacted for silence in and of itself, Baxter v. Palmigiano, supra. But when knowledge on the part of the inmate is fairly established by the evidence, his failure to provide information which would enable the authorities to restore stolen property to its rightful owner may constitutionally be considered as bearing upon his eligibility for parole. The inmate has the right, of course, to make known any countervailing circumstances, which the Commission then would be obligated to weigh and consider in arriving at its final decision. Rule 23-19.01(1); and see Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

We conclude that since the Commission’s action in applying the twelve-month aggravation is constitutionally suspect, owing to its reference to appellant’s silence “upon apprehension,” appellant is entitled to have this aggravation stricken. However, because the Commission has sufficiently identified pecuniary loss and restitution factors as the basis for its action, we conclude that the McKahn decision would not preclude further consideration of aggravation on the same grounds on remand to the Commission.

Accordingly, the order appealed from is reversed and the cause is remanded to the circuit court for entry of a final judgment ordering the Commission to strike the twelve-month aggravation relating to the jewelry loss, without prejudice to the right of the Commission, in its discretion, to re-institute an aggravation based on this factor not exceeding twelve months, in accordance with the applicable statutes and rules. The final judgment shall also strike the nineteen-month aggravation based on the “Ancient Prior Record” rule, with prejudice.

REVERSED and REMANDED for entry of judgment and for further proceedings in accordance with this opinion.

MILLS, J., concurs.

ERVIN, J., concurs specially with opinion.

ERVIN, Judge, specially

concurring.

The difficulty I have with permitting the Commission, in its discretion, to reinstitute an aggravation relating to a large jewelry loss is that I fear the taint affecting the first aggravation may also influence any possible decision in the future to aggravate, unless we attempt to ensure by appropriate directions that any such decision not be stigmatized by impermissible considerations.

If, following remand, the Commission considers it necessary to consider whether the inmate’s presumptive parole release date should be aggravated, either because of the inmate’s refusal to cooperate, or the large loss of jewelry, I think the Commission should be directed first to conduct a Section 120.57(1) hearing addressed to the issue whether the Commission has sufficient, competent evidence before it, independent of the primary taint, to aggravate. Moreover, in order to avoid the same Fifth Amendment violation that infected the original decision to aggravate, any such hearing should be controlled by the following balancing test announced in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and adopted by us in Pasco Cty. Sch. Bd. v. Florida Public Emp. Rel. Comm., 353 So.2d 108, 117 (Fla. 1st DCA 1977):

If the hearing officer determines the decision of the [agency] was motivated by a non-permissible reason, the burden shifts to the [agency] to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the [inmate] anyway.

The application of the Doyle test to those situations in which a colorable case is made that a presumptive parole release date was affected by impermissible considerations would, I think, be far more effective in preserving the integrity of the fact-finding process than would permitting the agency to reconsider an aggravation pursuant to the loosely structured procedure countenanced by the Commission’s rules. Its application, under such circumstances, would serve also to ensure that the taint inhering in the original Commission order be attenuated at any later proceeding. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . Filed prior to our decision in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981).

      . Rule 23-19.04(7), Florida Administrative Code.

      . See Section 947.165, Florida Statutes (1979), as amended July 1, 1979, effective retroactively to January 1, 1979, providing that factors used “in arriving at the salient factor score and the severity of offense behavior catagory shall not be applied as aggravating circumstances.”

      . The amended Commission action form explained the new nineteen month aggravating factor as follows:
      The offender is a poorer parole risk than contemplated by the matrix scoring. He had separate 5 convictions and sentences served in New York prior to commission of the present offense which were not included in the salient factor score under the “Ancient Record Rule.” He was arrested, following the present offense, on 6-6-77 and convicted of Possession of Drugs and Hit and Run With Injury, convicted and sentenced to one year TASC CALL [sic] Dade County jail.

      .Rule 23-19.04(l)(h), “Ancient Prior Record,” provides, in part, that if an offender has remained conviction free for a period of ten consecutive years, convictions and commitments prior to such ten year period should not be counted in the computation of prior convictions under the rules; however, the rule further provides that it does not prevent consideration of such prior convictions as a “negative indicant of parole prognosis,” should the circumstances so indicate.

      . Appellant timely filed his request for review under Section 947.173, pointing out with particularity the errors he later asserted in his mandamus action. The Commission failed to make any corrections.

      . It should be obvious that we are not called upon by the facts of this case to consider the propriety of the Commission’s use, in initially determining the PPRD, of convictions more than ten years old as a negative incident of parole prognosis, and a possible reason for overriding the salient factor score under Rule 23-19.04(l)(h). See footnote 5, supra.

      . See Hall v. Florida Parole and Probation Commission, 408 So.2d 1076 (Fla. 1st DCA 1981); and Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Roberts v. United States, 455 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980).

      . Section 947.173(1), and the corresponding rule, Rule 23-16.051(3), Florida Administrative Code, provide that the inmate’s request for review of Commission action shall show cause “in writing, with individual particularities,” the reasons for the review request. See Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

      . We agree that the first step toward rehabilitation may well be atonement, restitution, or other action or attitude demonstrating an offender’s desire to right the wrong done. See Roberts v. United States, supra, cited in footnote 9. The Commission’s Rules 23-19.-03(1)(c)1, and 19.03(2)(c)1, 3, and others, are predicated upon this principle.

      . Appellant shall have the right of review, under Section 947.173, of any revised ruling by the Commission relating to the jewelry loss, and any judicial review thereafter shall be had in accordance with Daniels v. Florida Parole and Probation Commission, supra, footnote 1. See also Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1981).

      . Although inmates do not have the right to request 120.57 hearings, see Section 120.-52(10)(d), we are not similarly inhibited by the APA. Cf. Daniel v. Florida Parole & Probation Com’n., 401 So.2d 1351 (Fla. 1st DCA 1981).


author: SHARP, Judge.

text:
    Bernard R. BLAIS, Appellant, v. Violet V. BLAIS, Appellee.
    No. 80-957.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.

      James S. Byrd, Orlando, for appellant.
    Michael E. Hamlin, Winter Park, for ap-pellee.
   SHARP, Judge.

The husband, appellant, raises six points in his appeal from a final judgment of dissolution: (1) the court erred in awarding the wife lump sum alimony; (2) the court erred in awarding the wife permanent periodic alimony; (3) the court erred in ordering that the permanent periodic alimony payments commence June 1,1980, when the final judgment was not reduced to writing and filed until July 1980; (4) the court erred in holding the husband responsible for a joint debt of the parties; (5) the trial judge erred in requiring the husband to maintain certain life insurance policies for the benefit of the wife; (6) the trial judge erred in failing to enter an order regarding the disposition of family property titled in the name of the wife. We find that error occurred in this case only with regard to point five.

At the time of the dissolution, the parties had been married for thirty-five years. The wife was fifty-four years old and for the first twenty-five years of marriage she had remained in the home to raise the parties’ five children. Since 1969 she had been working as a registered nurse. Her net income at the time of these proceedings was approximately two hundred dollars ($200.00) per week. She suffered from a hearing impairment and had a history of some abuse of alcohol. At the time of the dissolution the husband was fifty-seven years old. He was employed as a construction engineer with the federal government, earning a net income of approximately four hundred twenty-seven dollars per week.

The record shows the parties jointly owned the following assets: a condominium unit with an estimated value of forty thousand dollars ($40,000) subject to an outstanding mortgage of twenty thousand dollars ($20,000); a house worth between forty and fifty thousand dollars ($40,000-$50,-000), subject to a twenty-one thousand dollar mortgage ($21,000); two motor vehicles; and some jointly-owned securities with a fair market value of approximately three thousand dollars ($3,000). The husband had in his name a lien free forty-five foot sailboat which represented an investment of some fifty-two thousand dollars ($52,000) and a motorboat worth two thousand five hundred dollars ($2,500). These were acquired with funds or assets earned during the marriage. The wife also held in her sole name a one-thirtieth (Vso) interest in a parcel of real property which was a gift to her from the husband’s family.

The trial court awarded the wife two hundred fifty dollars ($250) per month in permanent periodic alimony and the husband’s interests in the condominium and the house, subject to existing mortgages, as lump sum alimony. The trial judge left the securities in joint ownership and the one-thirtieth (V30) interest in the real property in the wife’s sole name. Further, the trial judge ordered the husband to maintain certain life insurance policies for the benefit of the wife and required the husband to hold the wife harmless for a joint debt in the amount of one thousand six hundred dollars ($1,600) owed to Sun Bank. The wife was also awarded a 1980 Buick, which is subject to a substantial security lien. It awarded the husband the forty-five foot sailboat, the sixteen foot motorboat, and the lien-free 1975 Dodge van.

POINT I

We find the trial court did not err in awarding the husband’s interests in the condominium and the house, subject to existing mortgages, as lump sum alimony to the wife. The two parcels are worth “net” approximately forty thousand dollars ($40,-000), considering existing mortgages of some forty-one thousand dollars for which the wife is responsible. Further, the husband was not stripped of all of his assets, since he retained ownership of the sailboat and motorboat, worth fifty-four thousand five hundred dollars ($54,500). In view of the duration of this marriage, the disparity in the parties’ earning capacity and the relative health of the parties, the award does not appear inequitable. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

POINT II

The permanent alimony award of two hundred fifty dollars ($250) per month is well within the trial court’s reasonable exercise of discretion for the same reasons stated at Point I. See Canakaris; McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (1978).

POINT III

We find no reversible error in the trial court’s commencing the husband’s permanent periodic alimony obligation prior to the filing of the written final judgment of dissolution. Alimony is generally awarded to provide support to a financially needy former spouse. Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980). If a spouse needs support prior to the dissolution the trial court can award temporary support. We recognize that a trial court has the discretion to make a modification in alimony retroactive to the time of filing the petition for modification. Absent a legislative mandate, we decline to extend that discretionary authority to the initial alimony award. However, in this case at the conclusion of the final hearing on May 15, 1980, the court ruled it was awarding the wife two hundred fifty dollars ($250) per month periodic alimony. Therefore, it had inherent power to render its judgment nunc pro tunc as of the time the case was submitted to it for determination. Becker v. King, 307 So.2d 855 (Fla. 4th DCA), cert. dismissed, 317 So.2d 76 (1975).

POINT IV

We find the trial court did not err in holding the husband responsible for the parties’ joint debt in the amount of one thousand six hundred dollars ($1,600). The debt was a loan taken out for the purpose of purchasing the husband’s sailboat and it was secured by the parties’ jointly-owned securities. Since the husband received this asset in the dissolution he should have full responsibility for the debt related to it.

POINT V

We find the trial court erred in requiring the husband to maintain the wife as an irrevocable beneficiary on his life insurance policy with U. S. Government Insurance. In Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981), we recognized:

Since a trial judge cannot ordinarily award alimony to continue after death, provisions of dissolution judgments requiring the maintenance of life insurance for the benefit of a former spouse have been condemned as being tantamount to postmortem alimony.

392 So.2d at 989. Because the husband did not agree to maintain the U. S. Government insurance policy for the benefit of his wife that provision is improper.

The status of the policy referred to by the parties as “G. I. term insurance” is more difficult. The record reflects that as to the “G. I. term insurance” the appellant offered and agreed in open court to maintain it for the wife’s benefit. Accordingly, we affirm the trial court award as to the “G. I. term insurance policy.”

In view of the United States Supreme Court’s recent decision in Ridgway v. Ridgway, - U.S. -, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), we recognize a husband’s agreement to maintain a “G. I. term insurance policy” for the benefit of his wife may be an illusory benefit. In Ridgway the Court held that the provisions of the Servicemen’s Group Life Insurance Act of 1965 afforded the service member the right freely to designate the beneficiary and alter that choice, and that this federal law prevailed over inconsistent state law. Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950) holds an insured has a similar right pursuant to the provisions of the National Service Life Insurance Act of 1940. Thus, a trial court’s judgment incorporating a party’s agreement to keep these kinds of insurance policies in effect for the benefit of a former spouse may not be enforceable. In this case the exact nature of the “G. I. term insurance policy” is not reflected by the record. We are unable to determine whether the disposition of that policy would be affected by Ridgway and Wissner or not.

In light of Eagan we strike only that portion of paragraph eight relating to the U. S. Government Insurance Policy and remand. The trial court may, in its discretion, modify the support award as necessary to effectuate the original plan based on the record or on additional evidence as deemed necessary.

POINT VI

We find no reversible error in the trial court’s refusal to make a disposition of the one-thirtieth (Vao) interest in real property titled in the wife’s name. The record shows no special right or equity of the husband in this asset and no basis for an alimony award to him.

As modified by this opinion, the final judgment is affirmed and the cause remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . The wife estimated the value of the house at forty thousand dollars ($40,000); the husband states that it is worth closer to fifty thousand dollars ($50,000); however, the uncontroverted testimony of the wife is that no maintenance has been done on the house in fifteen (15) years. The house is in serious disrepair and needs fifteen thousand dollars ($15,000) in repairs.

      . The husband admits investing some fifty-two thousand dollars ($52,000) in the sailboat; however, he was noncommittal regarding the reasonable market value of the sailboat.

      . The husband testified that the whole parcel is worth one hundred seventy-seven thousand dollars ($177,000). The value of a one-thirtieth (V30) undivided interest is unknown.

      . The final judgment describes the car as a 1970 Buick; the record shows the car to be a 1980 model.

      . § 61.071, Fla.Stat. (1979).

      . McArthur v. McArthur, 106 So.2d 73 (Fla.1958); Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978).

      . Cf., O'Malley v. Pan American Bank of Orlando, 384 So.2d 1258 (Fla.1980) (The obligation to pay alimony ceases upon death of the obligor unless that person agrees otherwise). Depending upon the circumstances a beneficial interest in a life insurance policy may well constitute an equitable division of property rather than an alimony award. See Fla.Jur.2d Insurance § 907 (1981). However, in this case it is obvious the trial court intended that the insurance proceeds serve as a “res” to secure alimony payments in the event the husband predeceases the wife.

      . See Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976).


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

text:
    Sandra Lee O'NEAL, Appellant, v. Joseph Thomas O'NEAL, Appellee.
    No. 81-221.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.

      William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for appellant.
    Philip H. Elliott, Jr. of Elliott, Tindell & Strasser, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order which denied her petition for modification of a final judgment of dissolution of marriage. She had asked to change an award of rehabilitative alimony to permanent alimony.

The marriage was of thirty-two years duration commencing when appellant was eighteen years of age and appellee was twenty-one. Appellee became a career Air Force officer obtaining the rank of colonel at retirement. The parties had three children, all now self-supporting. Appellant has a college degree but did not work during the marriage; she stayed home to raise the family and to manage the household. During the marriage it was necessary for the family to move approximately fifty-two times because of appellee’s frequent duty changes.

The parties amicably settled their property interests. The only issue for trial was whether appellant was entitled to alimony and, if so, how much. The final judgment awarded her $200 per week rehabilitative alimony. This award was not appealed.

Appellee, alleging that he had lost his job and was therefore unable to continue making the weekly alimony payments, first petitioned for modification. The parties agreed to reduce the payments to $150 per week and to extend the payment period. Appellant later petitioned for modification alleging that various medical arid financial circumstances had combined to make her unable to support herself. She also alleged that appellee’s ability to provide support had improved since the dissolution.

The trial court denied her petition for an award of permanent alimony specifically finding that she had “no serious health problems”, and that she could support herself. The court also denied her motion for attorney’s fees. The trial court held that there was no legally sufficient change in circumstances on which to base an order of modification.

In Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975), the appellant argued that because of the in futuro nature of rehabilitation, a party awarded alimony pending such rehabilitation should have an opportunity to petition the court to show that notwithstanding reasonable and diligent efforts on the petitioner’s part, that substantial rehabilitation has not indeed occurred. The court agreed with this argument, stating:

When the vehicle of rehabilitative alimony is used, however, through unforeseen and faultless circumstances the anticipated and hoped for rehabilitation may not in fact occur to the extent that the awarded party is reasonably able to sustain herself or himself as intended by the court initially. In such case the awarded party should have the opportunity to petition the court for a re-evaluation of the alimony matter entirely and/or for an extension or modification of the rehabilitative alimony award. Particularly is this so when, as here, no permanent alimony was additionally awarded in the beginning, (emphasis added)

A rehabilitative alimony award is essentially a projection based upon certain assumptions and probabilities. If these assumptions and probabilities develop as predicted within the projected term, the spouse should be able to support himself or herself. To entitle the spouse to a modification, either to extend the rehabilitative period or to convert the rehabilitative alimony to permanent alimony, he or she must show why the court’s original assumptions were defective and why things did not work out as planned. Lee v. Lee. Therefore, the basic issue here is whether the wife has become self-supporting or whether she instead must rely upon the support of her former husband.

A person is not self-supporting simply because he or she has a job and income. The standard of living must be compared with the standard established during, the course of the marriage. A divorced wife is entitled to live in a manner reasonably commensurate with the standard established by the husband during the course of a long-term marriage. Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980). A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage. Nicolay; Johnson v. Johnson, 386 So.2d 14 (Fla. 5th DCA 1980). See also McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). These principles were not changed by Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980):

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.

The court below denied the petition for modification holding that the wife had the burden of showing a “change in circumstances.” Because the wife did not appeal the final judgment, the court was precluded from examining any of the factors which would have entitled her to permanent alimony at the time of the dissolution. In the final judgment, the trial court did not enunciate or describe the standard of self-support it anticipated for the wife as a goal of her rehabilitation. To determine that level, then, the court below had to have a point of reference in assessing the extent of rehabilitation. That point can only be determined by examining what would have been a reasonable goal at the time of the divorce. The fact that the wife would have been, under the evidence upon which the final judgment was based, a proper subject for permanent alimony should be properly considered at the time a modification of rehabilitative alimony to permanent alimony is considered. A wife should not have to waste her assets and those of her husband by pursuing an appeal of a rehabilitative award when she is willing to make a good faith effort to achieve rehabilitation and become self-supporting. We think that a rule favoring good faith cooperation toward achieving rehabilitation and self-support is preferable to a rule which requires one to appeal now or lose all future right to assistance.

In the case before us, the parties had been married for thirty-two years, the wife had not been gainfully employed, she made a home for her husband, moving as his duty dictated, and raised their children thereby waiving any opportunity to develop a rewarding profession or occupation. She had few income producing assets. During the same period, the husband was free to pursue and rise in his chosen profession. He earned a valuable retirement.

Since the dissolution, the wife has obtained a real estate license and has actively engaged in real estate sales. Her commission income has ranged from a low of $5,384 in 1976 to a high of $22,679 in 1978. In 1980, the last year in the record furnished, she earned $13,740. In addition, she had an income from dividends and interest of approximately $2,000. The wife complained of several health problems including potential glaucoma, a back ailment, phlebitis, and tendonitis for which she was receiving treatment. While presenting her with some difficulty in working and meeting medical costs, these conditions have not yet impaired her ability to work. Her net worth has increased since the divorce but that increase is represented principally by an increase in the market value of her home.

On the other hand, the husband has a retirement income of $30,000 per year. He is also entitled to his medical costs. He has lost the job that he held at the time of the dissolution and his income was thereby reduced by $11,000. He is a man of considerable ability and there does not appear from the record any health or other reason why he cannot expect to obtain employment and easily replace that loss, if he should be so inclined. However, at the time of the hearing on modification, he was living a comfortable life without working.

We conclude that it was error for the court below to consider only the “change in circumstances” test. The court should have considered the trial court’s objectives for rehabilitation and whether appellant achieved those objectives. It should also have considered whether there is a reasonable likelihood that the wife can maintain that ability of self-support in view of her age and foreseeable physical condition. Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980). It would be manifestly unjust to deprive the wife of all prospect of assistance at a precarious time in her life, when at the same time the husband’s security is assured.

The husband also contends that McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), applies to this case. The wife has not claimed a special equity in the husband’s retirement pay. She claims support on the basis of her need and the husband’s ability to pay. The husband’s ability is certainly affected by the amount of his income from whatever source. An award of permanent alimony is not a vested interest in his retirement and may be terminated or suspended if there is no further need. See Hunt v. Hunt, 394 So.2d 564 (Fla. 5th DCA 1980). The holding in McCarty is not relevant to the facts here.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SHARP and COWART, JJ., concur.

      . The original order that denied modification stated:
      In the Final Judgment entered on July 27, 1977, this Court found no basis for permanent alimony, but awarded rehabilitative alimony and retained jurisdiction for the purpose of extending the rehabilitative alimony or making it permanent if a change of circumstances made it appropriate to do so. (emphasis added)

        In the order denying rehearing, the court reiterated the above explanation, and further stated that “there was no legally sufficient change in the circumstances of the parties on which to base an order to modify the Final Judgment.” (emphasis added)

      . See Higgins v. Higgins, 408 So.2d 731 (Fla. 1st DCA 1981); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980); Bradley v. Bradley, 385 So.2d 101 (Fla. 5th DCA 1980).


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. ROOD INVESTMENTS, INC., Appellee.
    No. 81-690.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.
    John S. McEwan, II of Sanders, McEwan, Mims & McDonald, Orlando, for appellant.
    Harvey B. Hardy, Jr. of Clark & Hardy, P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

United States Fidelity and Guaranty Company appeals from a judgment declaring that its insured, Rood Investments, is covered under a policy issued by the company. We AFFIRM.

In December, 1976, a local hospital sent its linens to be washed and ironed at a laundry operated by Rood. After the linens were washed and dried, they were fed into a mechanical ironer. The ironer consisted of rollers which contained a series of steel wood pads covered by fabric. While the hospital’s laundry was being ironed, it became impregnated with steel wool particles. The fabric covers on the roller had apparently worn out allowing the steel wool particles to come in contact with the linen.

At the time this damage occurred, United States Fidelity and Guaranty had issued an insurance policy to the laundry. The policy included a Bailees’ Customers Policy and Dry Cleaning Endorsement which contained the following provision:

THIS POLICY INSURES AGAINST:
6. All risks of direct physical loss or damage to the insured property from any external cause except as hereinafter provided.
THIS POLICY DOES NOT INSURE AGAINST:
7. (a) LOSS or damage occasioned by wear, tear, gradual deterioration, insect, vermin or inherent vice; or by processing or any work upon the property unless caused by fire or explosion and then only for loss or damage caused by such ensuing fire or explosion. (emphasis added)

The hospital filed suit against, among others, Rood and United States Fidelity and Guaranty. After settling the suit with the hospital, Rood filed a third party complaint and sued, among others, United States Fidelity and Guaranty in a declaratory judgment action to determine whether the insurance policy covered the loss. The trial judge concluded that the exclusionary language of the policy was not ambiguous and that the loss occurred “during processing” rather than “by processing” thereby affording Rood coverage for the loss.

The central concern of the law of contracts is to give effect to the intentions of the parties, even in the realm of insurance where there are unique public policy considerations. Excelsior Ins. Company v. Pomona Park Bar & Package, 369 So.2d 938 (Fla.1979). Every provision in a contract should be given meaning and effect and apparent inconsistencies reconciled if possible. Haenal v. United States Fidelity & Guaranty Company, 88 So.2d 888 (Fla.1956); Royal American Realty, Inc. v. Bank of Palm Beach & Trust Company, 215 So.2d 336 (Fla. 4th DCA 1968). Terms should be given their common meaning and only when there is a genuine inconsistency, uncertainty, or ambiguity should terms or provisions be construed in favor of the insured. Excelsior Ins. Company v. Pomona Park Bar & Package, 369 So.2d at 942; Fontainebleau Hotel Corporation v. United Filigree Corporation, 298 So.2d 455 (Fla. 3d DCA 1974). However, this rule of construction does not allow courts to rewrite contracts, add meaning that is not present or otherwise reach results contrary to the intentions of the parties. Excelsior Ins. Company v. Pomona Park Bar & Package, 369 So.2d at 942.

We agree with the trial court’s conclusion that the exclusionary language is not ambiguous and that the phrase “by processing” refers to the process itself. Here, the linens were not damaged by the processing procedure itself but rather by the deterioration of the steel wool pads which took place during processing. If we were to accept the construction of the phrase “by processing” as argued by United States Fidelity and Guaranty, then almost all damage likely to occur in the laundry would be excluded. Such an extremely broad exclusion from coverage does not comport with the reasonable intentions of the parties.

We also reject United States Fidelity and Guaranty’s contention that the trial court failed to consider the first part of paragraph 7(a) which excludes “Loss or damage occasioned by wear, tear, gradual deterioration. ... ” Even assuming that this issue was properly raised in the pleadings and at trial, United States Fidelity and Guaranty is not entitled to relief. Paragraph 2 of the Bailees’ Endorsement indicates that coverage extends to “all kinds of lawful goods and articles accepted by the named insured ... for laundering, cleaning . . ., the property of the insured’s customers while contained in the premises hereinafter described.. .. ”

Here the “lawful goods and articles” were the hospital linens which were not damaged by their own wear, tear or gradual deterioration. Rather the linens were damaged by steel wool particles imbedded in the fabric during the ironing phase. While the fabric covering the steel wool pads apparently was subjected to gradual deterioration, this item is not covered by the Bailees’ Endorsement.

AFFIRMED.

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


text:
    Peter G. NOACK f/u/b/o American States Insurance Company, Appellant, v. B. L. WATTERS, INC., Appellee.
    No. 81-722.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.
    Randy Fischer of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellant.
    George A. Meier, III, and Michael K. Bailey of Pitts, Eubanks & Ross, P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

American States Insurance Company, subrogated to the rights of Peter G. Noack after payment of policy benefits, sued ap-pellee, Watters. American appeals from a summary judgment entered against it.

Noack contracted with Watters to have a home built and selected a standard house plan offered by Watters. The house was later damaged by a fire which, according to a fire analysis expert, was. caused by a propane gas leak that had its origin in a cracked flare nut in the fuel line. The expert further opined that the method of installation of the gas system violated numerous building code sections. The system was installed by an employee of Cal-Gas, a local natural gas firm.

Watters moved for summary judgment contending that it did not design or install the system and had no duty to inspect it. The court granted summary judgment and this appeal followed.

To be entitled to summary judgment, Watters was obligated to show conclusively the absence of any genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Every reasonable inference must be drawn in favor of American as the party against whom the motion was made. Wills v. Sears Roebuck & Company, 351 So.2d 29 (Fla.1977).

While the record indicates that an employee of Cal-Gas installed the system, this does not end the matter since an employer may be vicariously liable for the acts of independent contractors to whom he delegates a duty expressly undertaken under a specific agreement, Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), or which is inherently dangerous. Atlantic Coast Dev. v. Napoleon Steel, 385 So.2d 676 (Fla. 3d DCA 1980); Bialkowicz v. Pan American Condominium No. 3, Inc., 215 So.2d 767 (Fla. 3d DCA 1968). Here the complaint alleged that Cal-Gas was Watters’ employee and that Watters was under a duty to exercise reasonable care in the design, construction, inspection and/or supervision of its agents, employees or representatives, including its gas system contractors. American further alleged that Watters’ employees, acting within the scope of their employment, were negligent in installing the gas system. Watters denied these allegations.

Watters contends that American failed to produce evidence establishing an employment relation and relies on cases such as Harvey Building Inc. v. Haley, 175 So.2d 780 (Fla.1965) and F & R Builders v. Lowell Dunn, 364 So.2d 826 (Fla. 3d DCA 1978). In Harvey, the court held that where a motion for summary judgment is supported by evidence which reveals no genuine issue of material fact, it is not sufficient for the opposing party merely to assert that an issue does exist. Rather, the opposing party must come forward with evidence sufficient to generate an issue on a material fact. In F & R Builders, the Third District Court of Appeal restated this principle in noting that issues of fact do not arise merely because a party disagrees with the facts established by competent evidence submitted by the party moving for summary judgment.

This principle is inapplicable here because Watters did not present evidence denying the existence of an employment relationship between itself and Cal-Gas. The only clear evidence in the record indicates that Cal-Gas, not Watters, installed the gas system. There is no evidence indicating whether Noack or Watters was responsible for installation of the system. Watters relies on Noack’s testimony in his deposition but viewing this evidence in a light most favorable to American, Wills v. Sears Roebuck & Co., 351 So.2d at 32, it merely indicates that he contacted Cal-Gas to supply gas for the system and not to install the gas lines.

REVERSED.

ORFINGER and SHARP, JJ., concur.

      . The installation of natural gas lines is an inherently dangerous activity. See Farber v. The Houston Corp., 150 So.2d 732 (Fla. 3d DCA 1963); Russell v. Jacksonville Gas Corp., 117 So.2d 29 (Fla. 1st DCA 1960).


author: DOWNEY, Judge.

text:
    Lorene B. COMBS, et vir, Appellants, v. AETNA INSURANCE COMPANY, etc., et al., Appellees.
    No. 80-1965.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellants.
    Bradford L. Jefferson of Brennan, McAli-ley, Hayskar & McAliley, Fort Pierce, for appellee Lavern Quandt d/b/a Villa Capri Restaurant.
   DOWNEY, Judge.

Mr. and Mrs. Combs, plaintiffs in a slip and fall action against several defendants, appeal from a final summary judgment in favor of defendant Lavern Quandt, d/b/a Villa Capri Restaurant.

On the evening of February 24,1978, Mr. and Mrs. Combs drove to Mr. Quandt’s restaurant to dine. The restaurant is located along with other businesses in a shopping center. After dining, they left the restaurant at about 7:30 p. m. and started walking toward their car, which was parked in a parking lot that was used in common by all the tenants of the shopping center. Along the way Mrs. Combs fell and suffered serious injuries.

Thereafter, Mrs. Combs and her husband filed a complaint against numerous persons, including the owner of the shopping center and Mr. Quandt. In material part, the complaint alleged that both the owner and Mr. Quandt, who leased the restaurant in question from the owner, were negligent in that they knew or should have known that an elevated divider in the parking lot was not properly marked or lighted, and that they were liable in money damages to Mrs. Combs for her injuries and to Mr. Combs for loss of consortium because they failed to maintain the parking lot in a safe condition and failed to warn of the danger created by the inadequate marking or lighting of the divider.

After filing an answer denying any liability, and after extensive discovery was had, Quandt filed a motion for summary judgment on the ground that, as a matter of law, he could not be liable to Mr. and Mrs. Combs because he had no duty relative to anyone using the parking lot since he was not in control of it. The court granted his motion and entered final summary judgment for Quandt and against Mr. and Mrs. Combs.

On appeal the Combses assert there were genuine issues of material fact that precluded the entry of final summary judgment in Quandt’s favor. They argue that even if Quandt exercised no control over the parking lot, he still had a duty to warn them of the dangerous condition in the parking lot.

Although we hold that the circuit court’s implicit summary finding that Quandt exercised no control over the parking lot was correct, we also hold that the entry of final summary judgment was erroneous, since control is not the sole basis for liability in a slip and fall action against a landlord and a tenant. We accept the contention of Mr. and Mrs. Combs that Quandt had a duty to warn them of any dangerous condition in the parking lot if he had actual or constructive knowledge of such a condition. See Monteroso v. Gaudette, 391 N.E.2d 948 (Mass.App.1979); Hopkins v. F. W. Woolworth Co., 419 N.E.2d 302 (Mass. App.1981); cf. Roberts v. Tennessee Wesleyan College, 60 Tenn.App. 624, 450 S.W.2d 21 (1969).

Quandt’s motion for summary judgment did not address the asserted breach of the alleged duty to warn; thus there still remain for determination genuine issues of material fact surfounding the alleged duty to warn. We therefore reverse the final summary judgment in favor of Quandt and remand the cause for further proceedings.

REVERSED AND REMANDED with directions.

BERANEK and HURLEY, JJ., concur.


text:
    Edward S. DAVIS, Appellant, v. STATE of Florida, Appellee. John DeMARCO, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-643, 81-644.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.
    Robert P. Foley of Foley & Colton, P. A., West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.