text:
    James Randolph HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. AD-343.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Rehearing Denied Oct. 1, 1982.

      Michael E. Allen, Public Defender and Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Judge.

Howell appeals his adjudication of guilt for the offense of selling, delivering or possessing cannabis with the intent to sell, entered following his plea of nolo conten-dere. The plea in turn was conditioned upon his right to appeal the denial of his motion to dismiss the information, which had alleged that his constitutional right to speedy trial had been violated due to the delay between the asserted date of the offense and his arrest. We affirm.

In this case, we identify and distinguish principles applicable to the determination of constitutional deprivations under the United States Constitution’s Sixth Amendment Speedy Trial Clause and the Fourteenth Amendment Due Process Clause. We distinguish the considerations applicable to each respective clause, and expand upon our previous opinion in State v. Griffin, 347 So,2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978).

Appellant, James Howell, sold a small quantity of marijuana on August 8, 1979 to an undercover agent. Four months later, on December 19, 1979, an information was filed against him, but appellant was not arrested until December 5, 1980. Shortly thereafter on February 27, 1981, appellant filed a motion to dismiss, alleging only that his constitutional rights to a speedy trial had been violated. Consequently, this case does not involve, nor do we address, the applicability of Florida Rule of Criminal Procedure 3.191(a)(1). At the March 6, 1981 motion hearing, the appellant testified that he had been prejudiced by the delay in bringing him to trial, because he was unable to remember where he was or what he had been doing at the time the crime occurred. Further, he stated that neither his friends nor his roommate could remember his whereabouts at that time. He suspected that he may have been out of town on August 8th but was unsure.

No one testified for the state. Consequently, it was not determined why the arrest of appellant had been delayed for sixteen months after the occurrence of the crime and one year from the filing of the information. Appellant stated that he had not attempted to elude the authorities during this period. In fact, the appellant had been stopped on two occasions by police— once in St. Johns County for running a red light and on another occasion for falling asleep in his car at an apartment complex. Appellant contends that a routine radio check by the police for any outstanding warrants on either occasion would have resulted in an arrest. He also asserts that he had lived continuously in Gainesville, although he did admit to having moved three times prior to arrest.

The lower court voiced its concern about the delay between the date of the crime and defendant’s arrest. This point manifests itself in the form of a fairly narrow legal question, to wit: Who has the burden of proof to account for the delay in arresting appellant? Should that burden be thrust on the state to show why the appellant had not been arrested in a more timely manner, or should it be placed on the appellant, since he was the one moving for dismissal of the charge against him? Although the lower court found there was no evidence regarding which of the two parties should explain the delay, it nevertheless denied the motion to dismiss. The appellant entered a plea of nolo contendere, specifically reserving the right to appeal the dispositive denial of the motion to dismiss. He alleges both a denial of his due process and speedy trial rights.

Initially, we note that delay during the four-month period between the occurrence of the crime and the filing of the information is one to be addressed under the Due Process Clause, while the delay during the fourteen-and-one-half month period between the filing of the information and the hearing on the motion to dismiss is one to be examined under the Speedy Trial Clause of the Sixth Amendment. United States v. MacDonald, - U.S. -, - -, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696, 702-703 (1982). The Sixth Amendment right to a speedy trial becomes effective at the time of arrest or indictment, whichever comes first, and it continues until the date of trial. United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir. 1982). The distinction, as to the basis for constitutional consideration of delay, also requires one to bear in mind the dichotomous purposes of and interests protected by the two clauses.

The Due Process Clause protects against an oppressive delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, reh. denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). However, the purpose of the clause is not to afford wide-ranging protections based on shallow claims of prejudicial delay. MacDonald, supra, at - U.S. at -, 102 S.Ct. at 1508, 71 L.Ed.2d at 711 (Marshall, J., dissenting). The intended application of due process notions is a narrow one, although prevention of oppressive actual prejudice to the defense caused by the passage of time is the central concern of due process in a delayed arrest or indictment setting. Id. at - U.S. at -, 102 S.Ct. at 1502, 71 L.Ed.2d at 704; State v. Griffin, supra, at 695. Proof of actual prejudice does not make valid a due process assault on delayed arrest or indictment. Rather, it merely makes such a claim ripe for adjudication. Lovasco, supra, at 431 U.S. at 789, 97 S.Ct. at 2048.

The speedy trial right of the Sixth Amendment, on the other hand, involves a different and more encompassing purpose. Its protections were carefully analyzed by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). Barker identified some of the problems stemming from a delayed trial as those including more time for increased plea bargaining to lesser offenses; opportunity for the commission of a crime by a defendant while the accused is on bond awaiting trial; a greater and more tempting opportunity to jump bail; increased incarcerations for those awaiting trial who have been arrested and unable to make bail; and the potential for jail overcrowding contributed to by those individuals in the immediate foregoing category. Barker, supra, at 407 U.S. at 519-520, 92 S.Ct. at 2186-87.

Perhaps the greatest evil which the Sixth Amendment speedy trial right proposes to counter is the potential for a witness’s memory to lapse in regard to material matters as the delay for trial increases. Cf. Barker, supra, at 407 U.S. at 521, 92 S.Ct. at 2187. This not insignificant concern is a key point of distinction between the speedy trial right and all other constitutional rights of the accused, because it cuts both ways: “[T]he right to [a] speedy trial is unlike other constitutional rights because deprivation of the right may work to the accused’s advantage. The fading of witnesses’ memories with time may disadvantage the government far more than the accused because the government carries the burden of proof.” United States v. Avalos, 541 F.2d 1100, 1110 (5th Cir.), reh. en banc denied, 545 F.2d 168 (1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977); cf. United States v. Edwards, 577 F.2d 883, 889-890 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).

Thus, both the purposes of the due process and speedy trial provisions, as well as the time periods to which each is applicable, are different. Similarly, the analysis for determining violations of the respective rights is different, although there is one underlying theme common to both rights: both seek to avoid actual prejudice, and, for all practical purposes, the prejudice that can result to a defendant due to a pre-arrest delay is often indistinguishable from that arising from a post-arrest delay. Griffin, supra, at 694.

In Griffin, we set forth the general standards involved in pre-arrest/indictment due process violations attributable to time delay by the state. We stated:

The authorities appear to agree, and we so hold that a pre-arrest due process deprivation cannot be quantified into a specific number of days. Many factors must be taken into consideration; among them are the reason the government assigns to justify the delay and the judicial discretion of the trial court in evaluating the circumstances. Prejudice to the accused is the most important factor in evaluating the question of due process deprivation. No matter how long the delay, if within the period of the statute of limitations, unless the accused can demonstrate that he has been prejudiced thereby, the delay, per se, will not justify dismissal.

Griffin, supra, at 695 (footnotes omitted).

The Griffin language is somewhat vague as to the specific test to be used in detecting a due process’ deprivation due to time delay. The test has been further clarified by various federal appellate courts since Griffin, but due to a conflict in the different federal circuit courts of appeal, there are still unanswered questions as to the precise nature of the test. We will attempt to answer these questions for the benefit of the Florida bench and bar. In Avalos, the court, relying on the United States Supreme Court decision in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), and other fifth circuit decisions, observed that a due process violation exists if criminal defendants can show: “(1) that they incurred substantial prejudice as a result of the government’s delays and (2) that the prosecution had intentionally employed the delay to gain a tactical advantage.” Avalos, supra, at 1107.

The Avalos court held that a showing of both factors in the foregoing test would demonstrate a due process violation, but acknowledged that “[t]here is no Supreme Court authority squarely holding that satisfaction of both elements of the test is necessary to find a due process violation.” Id, at 1107, n. 9. Shortly after Avalos, a different fifth circuit panel read the Marion decision to require both a showing of actual prejudice and an intentional tactical delay, because the United States Supreme Court had indicated that a showing of prejudice alone only “ ‘makes a due process claim concrete and ripe for adjudication.’ ” United States v. Brand, 556 F.2d 1312, 1317 n. 7 (5th Cir. 1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 763 (1978), citing United States v. Lovasco, supra, at 431 U.S. at 789, 97 S.Ct. at 2048.

Later decisions from the fifth circuit following Brand reflect uncertainty as to the proper test to be applied in determining whether a due process violation occurred. For example, United States v. Medina-Arellano, 569 F.2d 349, 352, n. 2 (5th Cir. 1978), stated, contrary to Brand, that “[t]he Supreme Court in Lovasco implicitly left open the question whether a showing of tactical delay by the government without actual prejudice to the defendant could require reversal.” However, another panel appears to have readopted the position set forth in Brand. See United States v. Durnin, 632 F.2d 1297, 1299 (5th Cir. 1980).

This apparent vacillation in positions suggests a division within the court, as well as an uncertainty as to the resolution of this issue. Fortunately, the court significantly clarified its position in United States v. Townley, 665 F.2d 579, 581-582 (5th Cir. 1982). That case stands for the proposition that something less than an intentionally caused delay by the prosecution might suffice to justify a finding of a due process deprivation, if actual prejudice is also present. Consequently, for the determination of a due process deprivation, we adopt the following test approved in Townley:

Thus, in evaluating an asserted due process violation based on preindictment delay, Lo vasco and Marion require us “to consider both the reasons for the delay and the prejudice to the accused.” . .. Further, the' accused bears the burden of proving the prejudice and, if the threshold requirement of proof of actual prejudice is not met, the inquiry ends there. . . . Once actual prejudice is shown, it is necessary to engage “in a sensitive balancing of the government’s need for an investigative delay . . . against the prejudice asserted by the defendant.” . . . The inquiry turns on “whether the prosecution’s actions violated ‘fundamental conceptions of justice’ or the community’s sense of fair play and decency.” ... “Inherent in the adoption of a balancing process is the notion that particular reasons are to be weighed against the particular prejudice suffered on a case-by-case basis.”

Townley, supra, at 581-582 (cites omitted); accord, United States v. King, 593 F.2d 269, 272 (7th Cir. 1979).

Accordingly, it would appear to be the responsibility of the defendant to demonstrate actual prejudice resulting from any delay in arrest or indictments. Once the defendant has met his burden of proof, the burden shifts to the government to show why the delay was necessary. King, supra, at 272. It follows that if the defendant cannot meet his initial burden of proof, the inquiry need not proceed any further. Townley, supra, at 582 n. 2 and cases cited therein. In the case at bar, the appellant’s claims of prejudice recounted the faded memories of his friends, as well as his own memory. It is unclear whether these memories faded due to the passage of four months from the time that the crime occurred until the filing of the information, or faded due to the passage of the far longer post-information period, which is to be scrutinized under the speedy trial standard set out in Barker v. Wingo, supra. Further, it is unclear in what material way these faded memories caused the appellant actual prejudice. Speculative allegations as to faded memories simply do not suffice to prove actual prejudice. United States v. Hendricks, 661 F.2d 38, 40 (5th Cir. 1981); Medina-Arellano, supra, at 352-353; State v. Newman, 367 So.2d 251, 252 (Fla. 4th DCA 1979). Consequently, we are unable to find any due process deprivation due to delay in time.

With regard to appellant’s charge that his constitutional speedy trial rights have been denied him, our analysis starts with Barker v. Wingo, supra, which delineates four factors that guide our determination in the case at bar as to whether a speedy trial violation has occurred because of delay: (1) the length of the delay, e.g., whether the delay is presumptively prejudicial; (2) the reason for delay; (3) whether the appellant has timely asserted his rights, and (4) the existence of actual prejudice as a result of the delay. Barker, supra, at 407 U.S. at 530-533, 92 S.Ct. at 2191-93. These factors were not intended to comprise an exhaustive list of considerations — only a guide. Id. at 407 U.S. at 530, 92 S.Ct. at 2191. “The test is more suggestive than exhaustive, ...” Avalos, supra, at 1110.

For two reasons, we believe that the Barker test is one that cannot be carried out in a certain, talismanic fashion. First, no one factor is dispositive as to the determination of a violation of defendant’s rights. The test is one in which each factor is balanced against the others. No single factor is either necessary or sufficient as a pre-condition to finding a denial of one’s rights. Avalos, supra, at 1110. Because of the foregoing point, the second reason takes on added life in that each case must be carefully gauged on its own facts.

Turning to . consideration of the four Barker factors, the starting point is always the length of delay. Viewed as a threshold triggering mechanism, “[a] court need not inquire into the other factors unless there has been a delay of such length as to be ‘presumptively prejudicial.’ ” State v. Bonamy, 409 So.2d 518, 519 (Fla. 5th DCA 1982). It is not completely clear what period of time is sufficient to rise to the level of presumptive prejudice for speedy trial purposes. It is clear, however, that the period of time sufficient to constitute presumptive prejudice is measured from the time the Sixth Amendment right to a speedy trial becomes effective — arrest, indictment, or the filing of an information, whichever comes first — until the time of trial. Gonzalez, supra, at 444.

In Bonamy, the court pointed to United States v. Anderson, 621 F.2d 292 (8th Cir. 1980), for the proposition that a twelvemonth delay was presumptively prejudicial. See also Smith v. Mabry, 564 F.2d 249, 251 (8th Cir. 1977) (10-month delay is presumptively prejudicial). Notwithstanding the above to the contrary, we feel persuaded more by the reasoning of the United States Courts of Appeal for the Fifth Circuit and the new Eleventh Circuit. The court in United States v. Greer, 655 F.2d 51 (5th Cir. 1981), noted that a ten-and-one-half month delay is not presumptively prejudicial, although a fifteen-month delay is. One may thereby conclude that a period of presumptive prejudice triggering a Barker v. Wingo review apparently lies somewhere, between the two time periods; nevertheless the Greer court, in examining an eleven-and-three-quarters month delay, was reluctant to express a view regarding any presumptive prejudice inhering in the case before it. Rather, the court proceeded to conduct a full-blown Barker v. Wingo review and to dispose of the case by finding no constitutional deprivation of the speedy trial right.

Our case involves a fourteen-and-one-half month delay from the time of the filing of the information until the time of the hearing, that is in our view presumptively prejudicial, thereby triggering a full Barker review. Consequently, we turn to the second factor regarding the reason for delay, of which there are three categories, including: (1) deliberate delay; (2) negligent delay, and (3) justified delay. Avalos, supra, at 1111-1114. “A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government.” Barker, supra, at 407 U.S. at 531, 92 S.Ct. at 2192. Examples of an intentional delay include forum-shopping, harrassment of the defendant, or delay to gain a tactical advantage. Avalos, supra, at 1111-1112, 1112 n. 22.

To be distinguished from the latter form of intentional delay for the purpose of gaining a tactical advantage are those cases falling within the third category of “justified delay,” a situation in which the state undergoes considerable legitimate difficulty in amassing the evidence or rounding up witnesses, as well as cases involving a number of defendants. Avalos, supra, at 1114; Bonamy, supra, at 520. The legitimate need for additional time in preparing for a highly complex multi-defendant white collar conspiracy prosecution would appear to be far more justified than preparing for a relatively straight-forward sale of a small quantity of illegal contraband by a single defendant, such as in the case at bar. See, e.g., Avalos, supra, at 1110 n. 17 and cases cited therein. We therefore determine that as to the category of justified delay, the appellant has met his burden.

The third category, that of negligent delay by the state, includes delays attributable to such factors as an overcrowded court docket. Barker, supra, at 407 U.S. at 531, 92 S.Ct. at 2192; Bonamy, supra, at 520. Although the Bonamy court refers to this situation as a “neutral” reason for delay, implying that it should be weighed neither against a defendant nor the government, we feel compelled to point out that the term “neutral”' is a misnomer. What is actually intended by this word is a delay to be weighed less heavily against the state than an intentional delay. Because the condition of an overcrowded court docket is one that is in the end perpetrated by the state, although not with any devious designs, the state, under such circumstances, must bear the burden of fault. Barker, supra, at 407 U.S. at 531, 92 S.Ct. at 2192; Greer, supra, at 53. Compare Florida Rule of Criminal Procedure 3.191(f), providing that exceptional circumstances permitting extension of time for speedy trial “shall not include general congestion of the court’s docket, ..."

It is unclear precisely where the case at bar falls. We have an unexplained delay which, to say the least, is flavored by the fact that it is a relatively unsophisticated case — one of common street crime. The appellant contends that this factor must be weighed against the government, since the reason for delay is unexplained, and it is the state that has the burden to explain this delay. Precisely who has the burden of proof as to this factor has apparently not been addressed by a Florida appellate court. The appellant contends that the delay in bringing him to trial was clearly due to the state’s negligence. He argues that to force a criminal defendant to prove the reason for delay would be an unconstitutional shift in the burden of proof. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

We reject this position. In Mullaney, the United States Supreme Court held that the prosecution must prove beyond a reasonable doubt every fact necessary to satisfy each element of the crime charged. Herein we are not dealing with proof of the elements of a crime. We are confronted with a type of defense, and therefore the due process violations involved in shifting the burden of proof in Mullaney are inapplicable. Cf. Speights v. State, 414 So.2d 574 (Fla. 1st DCA 1982).

Appellant’s argument that the state must account for the reason(s) for delay is not unpersuasive, however. To agree with the state that the party moving for dismissal has the burden of proof ignores the obvious — clearly the defendant will not in all cases be able to ascertain precisely why there has been a delay. Further, such an argument also avoids the fact that it is the state’s responsibility to bring the defendant to trial within a period of time which is not presumptively prejudicial. Barker, supra, at 407 U.S. at 527, 92 S.Ct. at 2190.

There are a few federal decisions that suggest the state has the burden to present the reasons for the delay. In United States v. Dyson, 469 F.2d 735, 740 (5th Cir. 1972), the appellee was prosecuted for draft evasion. Yet, it took the government twenty-two months to bring him to trial. The Dyson court condemned such practice, observing that “[t]he image of ‘excessiveness’ [in not timely bringing the appellee to trial] is sharpened by the Government’s total failure to proffer any explanation or justification for the delay.” Id. Only last year in Greer, supra, at 53, the fifth circuit again stated that “the responsibility rests with the prosecution to justify the delay, .... ”

Following the direction of the Fifth Circuit Court of Appeals, we consider that it is in a defendant’s best interests to make proper allegations in his motion to dismiss as to the reasons for prosecutorial delay. The burden to account for such delay, however, is decidedly upon the prosecution. “Obviously, the defendant is entitled to rebut and make a counter-showing .... ” Dyson, supra, at 742 n. 8. In the absence of a showing by the state of the reasons for delay, a remand for an evidentiary hearing and supplementation of the record has been utilized as the proper vehicle for appellate disposition of the propriety of the denial of a motion to dismiss in some cases. United States v. Anderson, supra, at 294; Dyson, supra, at 741-742. Other cases have been able to make a determination on appeal without the need for remand when the issue has at least been briefed by the parties, or reasons for delay are assigned by the prosecution, even if those reasons are not supported by the record.

Herein, the appellant attributes the delay to the state’s negligence rather than intentional conduct, while the state responds that the appellant was very difficult to locate due to the fact that he had moved three times within Alachua County during the period between the commission of the crime and arrest. The state offered no evidence as to the difficulties it incurred in locating defendant or attempts to arrest him. In view of the fact that appellant was stopped on two occasions by police officers, the purported reason offered by the'state is unconvincing. Keeping in mind the relative simplicity of prosecuting a case of this type, we are inclined to accept appellant’s contention that the delay was negligent. We therefore weigh the reason for delay factor against the state. Compare, United States v. Edwards, supra, at 577 F.2d 888-889.

The third factor requires that appellant assert his right to a speedy trial in a timely and vigorous manner. This is a seemingly minimal demand on a criminal defendant, Edwards, supra, at 889, and one which is geared toward avoiding prejudice to a defendant while denying him an escape hatch from the criminal justice system. United States v. Carter, 603 F.2d 1204, 1207 (5th Cir. 1979). Failure to make a demand for a speedy trial pursuant to Rule 3.191, Florida Rules of Criminal Procedure, is always a point to be considered by a trial court. State v. Jenkins, 389 So.2d 971, 975 (Fla. 1980).

However, this seemingly simple factor, as noted in Edwards, supra, at 889, is a “particularly troublesome” point, which is attributable to confusing language in Barker, supra. At one point the Court stated that “[a] defendant has no duty to bring himself to trial . . . ,” which implies that a defendant should not be penalized in the face of a delay in the provision of a speedy trial. At another point the Court emphasized that the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Regardless of this ostensibly contradictory language, the appellant herein did assert his right to a speedy trial in a relatively timely manner on February 27, 1981 — slightly more than two months following his arrest. It is equally clear that the state did not take this assertion lightly, since the case was brought to hearing on the motion on March 6, 1981. We therefore believe this factor should also be weighed in favor of the appellant.

The final point for analysis is whether the appellant has shown prejudice by the delay in his arrest and subsequent trial. Our Supreme Court has referred to this factor as the “key” consideration. State Department of Health & Rehabilitative Services v. Golden, 350 So.2d 344, 347 n. 8 (Fla.1976). This factor, as delineated by Barker v. Wingo, supra, requires that a court ascertain whether there has been actual prejudice to a criminal defendant resulting from the delay in bringing him to trial.

As noted previously, the appellant’s claim of prejudice stems from the fact that neither he nor his friends can recall where he was during the time of the drug sale. The courts have repeatedly stated, whether in a due process or speedy trial setting, that “[a]lthough faded memory may result in prejudice, . . . that in order to prejudice the defense to the extent necessary to constitute a speedy trial violation, the faded memory must substantially relate to a material fact in issue .... Vague assertions of faded memory will not suffice.” Edwards, supra, at 889.

There are many grounds upon which one might allege actual prejudice. In each case it is clear that the prejudice must materially affect the defense, and it must be an effect that is more than a minimal one. State v. Wallace, 401 So.2d 863, 864 (Fla. 1st DCA 1981).

Where the appellants allege no more than the general inability to recall a transaction with desired specificity that occurs in any trial regardless of delay, and where such faded memories do not appear substantially to relate to any material fact in issue, no actual impairment of their defense for purposes of a speedy trial challenge is shown.

Avalos, supra, at 1116. Consequently, we are unable to conclude that any actual prejudice has been demonstrated.

For speedy trial purposes, Barker, supra, requires that the four factors must be weighed against each other. As a general rule a showing of actual prejudice, coupled with a lengthy delay by the government that is unexplained, states a compelling case for dismissal due to the denial of a speedy trial. Avalos, supra, at 1116. Similarly, there is authority for the view that when the first three Barker factors are heavily weighed in favor of the accused, the necessity for a demonstration of actual prejudice is not required. Id. This is because our constitution will not tolerate unexcusable misconduct by the prosecution.

In this case, while there is no actual prejudice, there is both a period of time that is presumptively prejudicial combined with a negligent delay as well as a timely assertion of the right to a speedy trial promptly acted upon by the state. The first three factors tip the scales in favor of an accused, but we are unable to ascertain from our review of the record that these factors are heavily weighed in favor of the appellant. Although this case grasps at the outer reaches of what the constitution seemingly permits, it does not transgress the penumbral area of that which the constitution tolerates. Therefore, both the denial of the motion to dismiss and appellant’s conviction are AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.

      . Three forms of prejudice are considered in due process or speedy trial violations stemming from time delay in arresting, indicting or bringing a defendant to trial. Without forming ironclad definitions, the three forms of prejudice can be defined in general terms. Actual prejudice always includes material impairment of the defendant’s capacity to prepare a defense and in some cases may encompass personal prejudice as distinguished from prejudice to the defense. See United States v. Palmer, 502 F.2d 1233, 1235 1236 (5th Cir. 1974), rev’d. on other grounds sub nom., Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Another form of prejudice utilized in due process cases is substantial prejudice which often combines actual prejudice together with unreasonable delay. State v. Duran, 91 N.M. 756, 581 P.2d 19, 20 (1978). The third form of prejudice is presumptive prejudice. Stemming from a time delay that is prima facie unreasonable, it triggers closer review of a case to determine whether there has been a speedy trial violation. United States v. Edwards, 577 F.2d 883 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).

      . Both Avalos and Edwards are comprehensive opinions useful to our analysis. Edwards is an en banc decision of the former U.S. Circuit Court of Appeals for the Fifth Circuit. As federal appellate decisions, both cases provide significant guidance, since federal courts are the final word on federal constitutional law. Wright v. State, 418 So.2d 1087, 1091 (Fla. 1st DCA, 1982). Further, as opinions of the former fifth circuit, they represent binding precedent in the new eleventh circuit in which Florida is located. Schreiner v. McKenzie Tank Lines, 408 So.2d 711, 717 n. 9 (Fla. 1st DCA 1982), certified question docketed, no. 61,697 (Fla., February 11, 1982).

      . The tenth circuit has approved the view that actual prejudice and tactical advantage to the prosecution must be shown in order to show a due process deprivation. United States v. Revada, 574 F.2d 1047, 1049-1050 (10th Cir. 1978); see also United States v. Doe, 642 F.2d 1206, 1208-1209 (10th Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981). The second circuit has given apparent approval to this standard in language that while suggestive is couched in uncertain terms. See United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979), aff'd., 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). The ninth circuit has taken a somewhat similar, although distinguishable, view. In United States v. Mays, 549 F.2d 670, 677-678 (9th Cir. 1977), the court utilized an approach requiring proof of three elements, including: (1) actual prejudice caused to the defendants, (2) the length of the delay, and (3) the reason for the delay. See also United States v. Cederquist, 641 F.2d 1347, 1350-1351 (9th Cir. 1981). After a showing of actual prejudice, the court required consideration of the length of the delay but noted that this factor must be weighed in conjunction with the reason for the delay. Assuming actual prejudice, a finding of intentional or negligent prosecutorial misconduct combined with a lengthy government caused pre-arrest or pre-indictment delay would indicate a due process deprivation. Mays, supra, at 678.
      It appears that the Fourth District Court of Appeal may have adopted this analysis in State v, Newman, 367 So.2d 251, 252 (Fla. 4th DCA 1979). Moreover, the Second District Court of Appeal in State v. Parent, 408 So.2d 612, 614 (Fla.2d DCA 1981), appears to give it tacit approval by citing our opinion in Griffin, supra, at 695. We have carefully reviewed Griffin and do not believe that Griffin adopted the factors set forth in Mays, supra. Further, we feel certain that this view is not the proper path to follow, because it ignores a statement by the U.S. Supreme Court that “[a]ctual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; . . . . ” Marion, supra, at 404 U.S. at 324, 92 S.Ct. at 465; see also Arnold v. McCarthy, 566 F.2d 1377, 1383-1384 n. 1 (9th Cir. 1978) (disagreeing with Mays and asserting that the length of delay is not relevant, because this is only evidence of possible prejudice and not actual prejudice). To the extent that Newman and Parent adopt the Mays view, we decline to follow those cases.

      . Although Townley is a case from the newly created eleventh circuit, we find it very persuasive, since its clarifying viewpoint is derived from U.S. Supreme Court authority, as well as the fifth circuit case of United States v. Bland, supra, at 556 F.2d 1317, n. 7.

      . Notwithstanding the general rule, cases involving a prima facie showing of actual prejudice might also trigger a full-blown Barker review in certain instances.

      . United States v. Maizumi, 526 F.2d 848 (5th Cir. 1976).

      . Avalos, supra.

      . Avalos, supra, at 1110 n. 18.

      . Greer, supra, at 53.

      . Barker, supra, at 407 U.S. at 527, 92 S.Ct. at 2190.

      . Id. at 407 U.S. at 532, 92 S.Ct. at 2192.

      . Hendricks, supra, at 40.

      . Greer, supra, at 53 54 (emotional appearance of witness before jury due to death of relative and loss of memory by witness rejected as actual prejudice); Avalos, supra, at 1115 1116 (minimal anxiety, faded memory and lost witnesses unconnected to a material fact similarly rejected); Bonamy, supra, at 520; and Newman, supra, at 252.

      . Prejudice may first result from oppressive pre-trial incarceration which could result in the loss of the defendant’s job, disrupt his family, and hinder him in the preparation of his defense. Second, a defendant may suffer anxiety and concern due to public scorn and the chilling effect that a pending trial may have on his freedom of association. Third, and most importantly, there is the possibility that the defense will be impaired due to fading memories and lost evidence.

        Bonamy, supra, at 520.

      . The instant case action is somewhat similar to Edwards, supra, at 577 F.2d 889 n. 8, wherein the court noted that a heavy weighing of the first three factors in favor of the accused negates a need for a showing of actual prejudice. The Edwards court found that the second factor in that case was not heavily weighed in favor of the accused, since the government had not “idly ignored, vigorous speedy trial assertions” over a long period. No speedy trial violation was found to have occurred.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    NEWPORT INDUSTRIES and State Farm Insurance Company, Appellants, v. Irene MATHIS, Appellee.
    No. AH-367.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Michael F. Kempner of Kempner & Schottenfeld, Fort Lauderdale, for appellants.
    Lewis F. Cohen and George P. Telepas, Miami, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order awarding permanent total disability (PTD) benefits. The E/C contend that claimant has not suffered any change in condition which would warrant modification of a prior compensation order to award permanent total disability benefits, and that claimant has failed to conduct a good faith work search, a prerequisite to an award of PTD benefits in the absence of medical evidence of total inability to work. We find that there was sufficient competent substantial evidence to support the deputy’s determination that claimant’s condition has changed for the worse, but we agree that claimant’s work search was inadequate and reverse as to this issue.

Claimant is a 52-year-old woman with a very limited education and with no significant employment experience not involving manual labor. As a result of industrial injuries sustained on January 30, 1978, claimant has a 50% permanent impairment of the right leg and a 10% permanent impairment of the body as a whole due to back and neck problems. In addition to these orthopedic injuries, claimant has serious, noncompensable medical problems. Dr. Genovese, claimant’s treating orthopedist, testified that claimant’s limitations precluded overhead work or constant bending of the neck, and continuous sitting, standing, walking, or kneeling. Dr. Genovese further testified that claimant would need to rest periodically during the day, and that there would be days when contemporaneous flareups of claimant’s several orthopedic injuries would require bed rest. Dr. Gold-stein, an examining orthopedist, agreed that claimant had significant limitations and was disabled from performing manual labor. Dr. Goldstein felt that claimant’s orthopedic injuries would not prevent her from performing clerical or other light duty work on a part-time basis.

The claimant testified that she had attempted to find appropriate employment through the Florida State Employment Service and through the Rehabilitation Section of the Division of Workers’ Compensation. Claimant further testified that she had inquired about work with four telephone solicitation services, at a restaurant, at a sales office which needed part-time help, and with two employers who were seeking domestic help. From the record, it is clear that claimant would have been unable to perform the tasks of a maid or a restaurant worker. The same cannot be said of the part-time sales and telephone solicitation positions, which claimant felt she could handle if permitted to work at her own convenience. She testified she rejected the telephone solicitation jobs because the employers expected her to regularly work a four-hour shift. On each occasion when claimant contacted the employment service, the vocational rehabilitation section, or the private employers, she stated that she would only be able to work when she felt like it. Because claimant professed an inability to work regularly at any job, the employment service did not procure her any interviews and the vocational rehabilitation section was unable to obtain a work evaluation or place claimant in any training program.

We are aware that a claimant who is patently totally disabled, or who is incapable of uninterruptedly performing even light work may properly be found PTD even though no adequate work search has been conducted. Lancaster Youth Development Center v. Waters, 381 So.2d 1156 (Fla. 1st DCA 1980). Here, however, claimant is not patently totally disabled, and the deputy did not so find in his order. Although there was evidence that claimant could not work at any job which would not permit her to alternately sit or stand, and to take brief rest periods, there was no evidence other than claimant’s own testimony that she would be unable to uninterruptedly perform part-time work such as telephone solicitation. The deputy’s award of PTD benefits was not based on any finding that claimant was patently disabled or could not uninterruptedly perform any work. It was based on a finding that claimant had tested the job market by conducting an adequate work search within her limitations, thus proving her unemployability. Although we would not quarrel with the deputy’s implicit determination that claimant sought some appropriate types of work and made a sufficient number of contacts with private employers and with the employment and rehabilitation services, we are unable to agree that claimant has adequately tested the open labor market. On each occasion when claimant contacted the employers and referral services, she stated that she was unable to work except when she felt like it. She refused to attempt to perform work as a telephone solicitor because the employers expected her to regularly work four hours per day. Although there was evidence that exacerba-tions of claimant’s several physical problems would occasionally combine to require her to remain at bedrest throughout the day, there was no evidence as to how often this would happen, and thus there is no evidence that claimant is any different from other persons who occasionally miss work due to illness, injury, or flareups of chronic physical problems. The claimant refused, based upon self-imposed limitations, to undergo work evaluation for rehabilitation purposes, or to attempt to perform work which would have been within her physical capabilities but for the self-imposed limitations. In short, she did not try. We are unable to approve as adequate a work search wherein the claimant tells potential employers that she will work only when she feels like it. We do not feel that the result reached herein is excessively harsh, because, should rehabilitation efforts prove unsuccessful, the claimant may apply for a reconsideration of the adequacy of her efforts to obtain gainful employment. Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1981).

REVERSED.

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


author: ERVIN, Judge.

text:
    McKENZIE TANK LINES, INC., Employer and R.P. Hewitt Associates of Florida, Servicing Agent, Appellants, v. Foster G. McCAULEY and Division of Workers' Compensation, Appellees.
    No. AH-369.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.

      Luke G. Galant of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellants.
    William Thomas Edwards, Jr. of the Law Office of William T. Lassiter, Jr., Jacksonville, for appellees.
   ERVIN, Judge.

McKenzie and its servicing agent appeal from an order of the deputy commissioner which refused to exact the 25% penalty required by Section 440.09(4), Florida Statutes (1979), to be placed upon compensation benefits awarded to injured claimants who willfully refuse to use safety appliances. Explication of the requirements of Section 440.09(4), Florida Statutes, a workers’ compensation statute that has existed in a basically unaltered form since 1935, will be of benefit to both bench and bar. However, in delineating the standards and purpose of this somewhat ambiguous law, we are convinced that the deputy commissioner has erred. Therefore, we reverse and remand the deputy’s order for further necessary factual findings.

While working as a truck driver for the appellant, McKenzie Tank Lines, Inc., ap-pellee and claimant Foster McCauley was required to load caustic soda into a tank truck. While doing so, some of the soda flew into his eyes, causing the loss of use of his right eye and vision and depth perception problems with his left eye. The employer/carrier (e/c) paid temporary disability benefits, but affirmatively defended, arguing that McCauley was instructed to wear safety goggles, as required by a U.S. Occupational Safety and Health Administration (OSHA) mandate. 29 U.S.C. § 651 et seq.; see also 29 C.F.R. §§ 1910.132, 1910.133, 1910.262. Specifically, the e/c relies on Section 440.09(4), providing:

Where injury is caused by the willful refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully promulgated by the division, and brought prior to the accident to his or her knowledge, the compensation as provided in this chapter shall be reduced 25 percent.

At the hearing McCauley testified that he had never been issued goggles nor been ordered to wear goggles by the e/c. A former truck driver for the employer testified that it was only after the claimant’s accident that goggles were issued to employees with orders to wear them. On the other hand, the employer’s dispatcher stated that he personally issued goggles to the claimant before the accident. In support of this statement, the e/c’s terminal supervisor produced an invoice for the purchase of a number of goggles dated a few months prior to the accident. The supervisor also testified that employees were told to wear the protective goggles at various safety meetings held prior to the claimant’s accident.

An inspection of the claimant’s truck following the accident revealed a pair of goggles behind the driver’s seat. The e/c’s witnesses identified the goggles as those issued to the claimant, but the claimant countered this by stating that he had borrowed them from his brother. He asserted that he had been unable to wear them because they were in such bad condition that he was unable to see out of them.

Notwithstanding the obvious factual conflict in the live testimony presented to the deputy commissioner, the deputy’s order did not directly resolve the conflict on the evidence before him. Instead his order included a finding that Section 440.09(4) was not applicable to this case as a matter of law. While OSHA regulations do apparently require the wearing of safety goggles, the deputy impliedly determined first that only rules “lawfully promulgated by the division” of workers’ compensation could require the claimant to wear safety goggles, and, although the division had adopted the OSHA regulations as its own, second that OSHA has preempted the field of regulation as to private sector employment. See 29 U.S.C. §§ 651(b)(3), 667 (1970). Consequently, the deputy concluded that “[t]he Division’s jurisdiction is now limited to the public sector. Claimant’s benefits, therefore, should not have been reduced 25%. ” Implicit in the deputy’s ruling are the views that a violation occurs when an employee refuses to use a safety appliance or observe a safety regulation required by a rule lawfully promulgated by the division, and that the division cannot “lawfully promulgate” a safety rule, because OSHA has preempted the field. However, the language in the statute suggests a different interpretation than that required to accept the deputy’s determination. The statutory penalty may be invoked only when an employee willfully refuses “to use a safety appliance or observe a safety rule required by statute or lawfully promulgated by the division, .... ” (emphasis supplied.) The foregoing emphasis placed on the word “or” is important in interpreting this somewhat ambiguously worded statute. In this case use of the emphasized word “or” requires that the two clauses that it separates be read disjunctively. Telo-phase Society of Florida, Inc. v. State Board of Funeral Directors & Embalmers, 334 So.2d 563, 566-567 (Fla. 1976); 30 Fla. Jur. Statutes § 100 (Rev. 1974). Consequently, the statutory penalty is effective in those instances when an employee willfully refuses: (1) to use a safety appliance, or (2) to observe a safety rule.

We construe the emphasized language “required by statute or lawfully promulgated by the division” as applying only to the employee’s failure to observe a safety rule. We do so by virtue of the statutory rule of construction known as the doctrine of the last antecedent. In Mallard v. Tele-Trip Co., 398 So.2d 969, 972 (Fla. 1st DCA 1981), rev. denied, 411 So.2d 384 (Fla. 1981), we noted, as stated in Quindlen v. Prudential Insurance Co., 482 F.2d 876, 878 (5th Cir. 1973), that “relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.” (emphasis supplied); see also, 82 C.J.S. Statutes § 334 (1953).

We consider, then, the statutory penalty to come into play only if the claimant “willfully refuses” to

(1) use a safety appliance, or
(2) observe a safety rule required by statute, or
(3) observe a safety rule lawfully promulgated by rule of the division of workers’ compensation.

The second category — the “willful refusal” to observe a safety rule required by statute — turns on the construction of the word “statute.” We think the plain meaning of the word “statute” encompasses either a state or federal statute, such as the OSH A legislation. We do so bearing in mind that one of the purposes of Section 440.09(4) is obviously to act upon the employee and employer in a “carrot and stick” approach. Section 440.09(4), as gleaned from its terms, is intended to induce the employer into providing for a safe environment for the worker, as well as requiring that workers follow safe practices on the job.

By adhering to the strict standards of the statute and insisting on safe conditions at the job site, the employer is rewarded with a “carrot” by being relieved of some of the burden of compensating in full a claimant who is injured due to the latter’s willful refusal to observe prescribed safety practices. On the other hand, the employer who fails to demand such practices from workers receives the “stick”, or burden of paying out full compensation benefits to the injured worker. With this designed purpose in mind, we see no reason why the legislature should not have intended for the word “statute” in Section 440.09(4) to include the OSHA provisions of 29 U.S.C. § 651 et seq., which are the paramount worker safety statutes geared toward the elimination of significant harm to the worker. Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 611, 100 S.Ct. 2844, 2849, 65 L.Ed.2d 1010 (1980).

Because we perceive error in the deputy’s determinations caused by his interpretation of Section 440.09(4), Florida Statutes, a remand to the deputy is required for the purpose of entering additional factual findings. In order to aid him in his further deliberations, we consider it necessary to analyze some of the initial requirements of the statute which are prerequisites to applying it to a claim for compensation. Initially, we note that this statute is an e/c’s partial affirmative defense to a claim for benefits. 1A Larson, Workmen’s Compensation, § 33.10 at 6-48 (1979) (hereinafter cited as Larson). >As an affirmative defense, it is the e/c’s responsibility to plead carefully this defense or forever waive it. This can be easily accomplished by a notice of hearing, a responsive pleading to a claim or notice of hearing, or in the pre-trial stipulation routinely filed prior to a hearing before a deputy commissioner. See generally, Fla. W.C.R.P. 7,10(a)(1). We point out that in so doing, the parties are taking steps to preserve the issue for any future appellate review as noted in our recent opinion in Sunland Hospital, State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA, 1982).

Turning to the requirements of Section 440.09(4), it is apparent that the statute can only be defensively invoked when there is a causal relationship between a violation of the statute and the injury. Larson, supra, § 33.10 at 6-50; Herman v. Aetna Casualty & Surety Co., 71 Ga.App. 464, 31 S.E.2d 100, 103 (1944). While the evidence is suggestive as to the requisite causality, such issue must be determined by the deputy. Further, the statute requires that there be a “willful refusal of the employee to use a safety appliance or observe a safety rule .... ” (emphasis supplied).

As noted by the Florida Supreme Court in Smit v. Geyer Detective Agency, Inc., 130 So.2d 882, 884 (Fla. 1961), this means that “there must be an intentional commission of an act violative of a statute with knowledge that such an act is likely to result in serious injury, or the illegal act must be done with a wanton disregard of probable consequences.” See also White v. C.H. Lyne Foundry & Machine Co., 74 So.2d 538 (Fla. 1954). This is a factual question to be determined by a deputy commissioner whose determination must be supported by substantial competent evidence. Id. at 540.

While the Supreme Court has required a determination of “an intentional commission of an act violative of [the] ... statute,” we point out that statutes of this nature generally recognize a caveat to the foregoing rule: “If the employee had some plausible purpose to explain his violation of a rule, the defenses of violation of safety rules or wilful misconduct are inapplicable, even though the judgment of the employee might have been faulty . . . . ” Larson, supra, at § 33.40. In the case at bar, assuming the deputy commissioner found a willful refusal to wear the goggles, it is conceivable that he could accept the claimant’s testimony that he did not use the goggles because they were in such poor condition as to render their use impracticable.

Similar to the case at bar is Cochran v. Canulette Shipbuilding Co., 157 La. 184, 102 So. 198 (1924), wherein a claimant was ordered to wear safety goggles. He mounted a narrow plank 80 feet above the ground to bore rivet holes into a beam. Because the opaque side-pieces of the goggles obscured his side vision, thereby increasing the danger of falling, he removed his goggles. A piece of steel flew into his eye, causing the loss of the eye. His refusal to wear the goggles was held excused. Contrast Carrico v. State Compensation Commissioner, 127 W.Va. 463, 33 S.E.2d 281 (1945) (frequent steaming of glasses not excused).

Inextricably intertwined with the requirement of a willful refusal is the necessity of determining that an employee had prior notice of the order to use a safety appliance or observe a safety rule. See generally, Larson, supra, at § 33.20. This is supported by the statutory language in Section 440.09(4), requiring that an order to use a safety appliance or observe a safety rule be “brought prior to the accident to his or her [the claimant’s] knowledge, . . . . ” Statutes of this type dictate actual rather than constructive notice to satisfy the standard of a “willful refusal.” Id., § 33.20 at 6-51 to 6-52. For example, in Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. 619, 250 S.W. 903 (1923), a claimant was held not to have willfully violated a rule requiring the wearing of safety goggles on facts showing that the employer had merely posted the rule, but not revealing that the employee had ever read it. Contrast, Gregory v. McKesson & Robbins, Inc., 54 So.2d 682, 684 (Fla. 1951) (employee deemed to have known about law making it illegal to break thé speed limit, because this is a matter of common knowledge).

As explained by Professor Larson: “The concept of wilfulness connotes also that the employee understand the rule of which he has knowledge, and realize that the device involved is in fact a safety device to guard against a danger which has been explained to him.” Larson, supra, § 33.20 at 6-53. Further, any direction to observe a safety rule must clearly be an order and not merely a cautionary instruction or advice. Id. at 6-55.

Thus, the deputy will be required to determine whether there has been an unexcused “willful refusal” by the claimant, and if there has been, a finding will be necessary as to whether the claimant had actual notice of an order to wear safety goggles, or was issued goggles with an order to wear them for safety reasons.

Since we determine the term “statute” refers to either a federal or state enactment, the question of whether federal law has preempted the field is immaterial to a determination of the issue at hand: whether Section 440.09(4)’s penalty should be exacted under the circumstances presented. Accordingly, the deputy will be required on remand to address on its merits the issue of whether the claimant willfully refused to comply with any of the foregoing statutory requirements.

REVERSED and REMANDED for further consistent proceedings.

McCORD and JOANOS, JJ., concur.

      . Whether federal OSHA regulations preempt state regulations that are as stringent or more stringent than federal requirements is doubtful in light of an apparent recent federal court decision in Florida Citrus Packers v. California, No. C 81 4218EFL, Nat’l. Law Journal, August 30, 1982 at 5, col. 1 (N.D. Cal. 1982). The issue of federal preemption was recently and concisely treated in Community Communications Co. v. Boulder, -U.S. -, -, 102 S.Ct. 835, 846, 70 L.Ed.2d 810, 825-826 (1982) (Rehnquist, J., dissenting).

      . Rec. at 531.

      . Although not relevant to our decision, but meaningful to an understanding of notions of a “willful refusal” is the situation wherein an employer orders an employee to use a safety appliance or observe a safety rule but does not enforce the order or rule, thereby allowing workers to disregard proper safety procedures. If this situation exists and the employer is aware that employees are disregarding the rule, it is submitted that this should also excuse a claimant/employee’s “willful refusal.” See Larson, supra, at § 33.30.


author: PER CURIAM.

text:
    STATE of Florida, DIVISION OF FAMILY SERVICES and National Loss Control Service Corporation, Appellants, v. Margarita VARELA and the Division of Workers' Compensation, Appellees.
    No. AI-430.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Summers Warden, Miami, for appellants.
    Martin M. Dernis, Coral Gables, for ap-pellees.
   PER CURIAM.

The employer/carrier (E/C) bring this appeal from a compensation order issued upon claimant’s petition for modification of a pri- or order. The E/C assert that the deputy commissioner (deputy) erred in several respects, among them, by failing to find that the E/C are entitled to receive credit for overpayment of temporary total disability (TTD) benefits during the period from June 19, 1980 to February 28, 1981. We agree that the deputy erred in failing to determine whether there was a reasonable basis for the overpayment, and in failing to allow the E/C to credit any overpayments found to have been reasonably made against continuing TTD or unpaid permanent partial disability (PPD) benefits. We find the remaining issues raised by appellant to be without merit.

Claimant’s industrial injury occurred in 1974, and in 1978 claimant was found by the Judge of Industrial Claims to have reached maximum medical improvement on November 7,1977, with a 50% permanent disability of the body as a whole. The E/C thereafter commenced payment of PPD benefits. On June 19, 1980 claimant had to be re-hospitalized for treatment of accident-related injuries, and the E/C commenced payment of TTD benefits on that date and continuing through the date of the hearing. However, uncontradicted evidence in the record reveals that claimant returned to work around August 1, 1980, and worked fairly regularly thereafter until November 16, 1980 when she entered the hospital for non-accident related medical treatment. The claimant was not entitled to receive TTD benefits for the periods when she was working or was disabled as the result of noncom-pensable medical problems, and, indeed, she only claimed entitlement to nine weeks of TTD benefits for the period from June 1980 to February 1981.

Accordingly, the case is remanded with instructions to the deputy to calculate the amount of the TTD benefits to which claimant was entitled during the period in issue and, if overpayment was reasonable, to allow the E/C to credit any overpayment against claimant’s continuing TTD benefits, if any, or against any as yet unpaid PPD benefits. Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981). If the claimant is no longer receiving temporary disability benefits, and if the amount of the E/C’s overpayment exceeds the amount of permanent benefits which remain unpaid, if any, such portion of the overpayment as exceeds the amount of disability benefits remaining due shall be considered gratuitous and may not be recovered by the E/C. AFFIRMED in part and REMANDED.

MILLS, BOOTH and THOMPSON, JJ., concur.


author: JOANOS, Judge.

text:
    Benjamin Hayward HOPKINS, Appellant, v. STATE of Florida, Appellee.
    No. AI-446.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

In this appeal from a judgment and sentence for first degree murder, a capital felony, following a guilty plea, appellant contends that the court erred in sentencing him to a term of 199 years. The sentence also provided that appellant would have no parole eligibility for 25 years, and the court reserved jurisdiction to review any release order pursuant to Section 947.16(3), Florida Statutes, for 66 years. Appellant asserts that the only sentence authorized for a capital felony when the death sentence is not imposed is life imprisonment with no parole eligibility for 25 years; in other words, there was no authority for the sentence to a term of 199 years rather than simply “life.” Appellant contrasts the language of subsection 775.082(1), which contains no reference to a term of years or term of imprisonment, with that of subsections 775.082(3)(a) and (b), which provide for punishment “by a term of imprisonment for life” and “by imprisonment for a term of years not exceeding life imprisonment,” respectively. Appellee agreed that the appropriate sentence would be life imprisonment with the requirement that no less than 25 years be served before parole eligibility, citing Craig v. State, 290 So.2d 502 (Fla. 4th DCA 1974), and recommended that the sentence be revised to conform with Sections 775.082 and 947.16, Florida Statutes (1981).

In analyzing the case and arguments of appellant, there appeared a potential problem in the application of Section 947.16(3), Florida Statutes, should the sentence be revised according to the parties’ recommendations. On resentencing appellant to life imprisonment, should the trial court again enter an order pursuant to Section 947.-16(3), it would be for one-third of the life sentence. We have considered the parties’ supplemental briefs on this point. However, it is not appropriate to decide at this time whether the sentencing court may enter an order retaining jurisdiction for the first one-third of a life sentence, since no such order has been entered by the court below. See Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982).

Based on the authorities brought to this court’s attention by the parties, it appears that the only sentence authorized under Section 775.082(1) in this case is life imprisonment with no eligibility for parole until no less than 25 years have been served.

The sentence is vacated and remanded for resentencing to life imprisonment with no less than 25 years to be served before appellant is eligible for parole.

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


text:
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO) and William Mudgett as Trustee for American Federation of Government Employees, Appellants, v. Joseph ALBANESE and Nachwalter, Christie & Falk, P.A., Appellees.
    No. 81-1572.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    Harold D. Smith, Hollywood, for appellants.
    Silver, Levy & Hershoff and Jay Levy, Miami, for appellees.

      Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant, American Federation of Government Employees (AFL-CIO), et al., (AFGE), appeals a summary final judgment entered in favor of Appellee, Joseph Alba-nese. We reverse.

AFGE instituted an action of replevin to recover possession of Union property allegedly in the possession of Albanese at the time he was removed from office as president of Union Local 2447 which AFGE placed in trusteeship. AFGE recovered possession of all property sought except the proceeds of a check for $1,750.00 drawn by Albanese on the local’s bank account between the time of the imposition of the trusteeship and the institution of the re-plevin action. AFGE amended its complaint to plead for a money judgment against Albanese for $1,750.00, plus interest, on the theory of breach of his fiduciary obligations. There remain genuine issues of material fact as to that claim, precluding disposition by summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

Reversed and remanded for further proceedings.

      . The trial court properly retained jurisdiction despite the fact that the amount in controversy was below the minimum jurisdictional level. This is due to the alternative equity relief claimed by AFGE and the good faith test of the sum put in controversy when the action commenced. See Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976) and Section 78.-03, Florida Statutes (1977).


text:
    STATE ex rel. James F. KHAWLY, Petitioner, v. The Honorable Francis X. KNUCK, Circuit Judge, Respondent.
    No. 82-1165.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    Rehearing Denied Sept. 27, 1982.

      Lapidus & Stettin, Richard L. Lapidus and Robert P. Frankel, for petitioner.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for respondent.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   ON PETITION FOR WRIT OF HABEAS CORPUS

PER CURIAM.

On May 25, 1982, a complaint seeking an accounting, injunctive relief, the appointment of a receiver, and damages was filed. James F. Khawly, alleged in the complaint to be a resident of Dade County, was, with others, named as a defendant. On the following day, Khawly was served with a copy of the complaint along with a copy of a writ of ne exeat issued by the respondent. The writ commanded the Sheriff, inter alia:

“to detain the Defendant, JAMES F. KHAWLY, and to require him to give bond in the sum of Five Thousand and no/100 Dollars ($5,000.00) payable to the Governor of Florida and his successors in office conditioned that the Defendant . . . will not depart from the State of Florida without leave of Court .... If the Defendant does not give the Bond, he shall be taken into custody and be confined in the Dade County jail until he gives the Bond or until further order of this Court. If the Defendant does not give the Bond, he shall be brought before a judge of this Court within twenty-four hours of his confinement.”

Khawly was seized and imprisoned until he posted the required $5,000 bond. Correctly asserting that his freedom continues to be restrained by the writ of ne exeat and that habeas corpus relief is available to him, see, e.g., Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293 (1943), Khawly requests that we grant him such relief and discharge him from the writ of ne exeat.

Khawly argues that the issuance of a writ of ne exeat and the consequent seizure of his person is constitutionally impermissible when, as here, it is accomplished without a pre-seizure notice or opportunity to be heard. We need not reach this constitutional issue in order to grant Khawly relief. In our view, Khawly is entitled to relief simply because the sole allegation of the complaint upon which the writ of ne exeat was predicated is an expressed concern based “upon information and belief” that Khawly would attempt to leave the jurisdiction of the court upon the filing of the action and before process could be served upon him.

It strikes us as obvious that if the only alleged purpose for seeking a writ of ne exeat is to insure that a defendant in a civil suit will be served with the summons and complaint, that there is hardly any reason to serve the defendant with a writ of ne exeat when he could as well be served with the legal process itself. Thus, there exists the requirement that the issuance of a writ of ne exeat must be supported not only by allegations of a threatened departure from the jurisdiction of the court, but also by an allegation that the effect of such departure will be to enable the defendant to avoid his obligation to the plaintiff and render any ensuing judgment against the defendant ineffectual. Bronk v. State, 43 Fla. 461, 31 So. 248 (1901); 57 Am.Jur.2d Ne Exeat § 7 (1971). Not only does the instant complaint lack any assertion that an ultimate debt will be jeopardized by Khawly’s departure, but, moreover, the assertion that Khawly was about to depart, made “on information and belief” and unsupported by any other fact, is equally insufficient to satisfy the first prong for a ne exeat writ. 57 Am.Jur.2d Ne Exeat § 11 (1971).

Accordingly, the petition for writ of ha-beas corpus is granted, and the writ of ne exeat issued by the trial court is discharged.

      . Assuming, arguendo, that such an allegation would support the issuance of a writ of ne exeat, any necessity for the writ would have been obviated when Khawly was served with process.


text:
    Stephen G. BREHM, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1659.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    Stephen G. Brehm, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that is conclusively appears therefrom that petitioner is entitled' to no relief, the denial of his motion is affirmed. See Brehm v. State, Case no. 81-2369 (now pending in this court).


text:
    David Wayne BRIDGES, Sr., Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1747.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    David Wayne Bridges, Sr., in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, David Wayne Bridges, Sr., pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: HURLEY, Judge. BERANEK, Judge,

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. ACME ELECTRICAL CONTRACTORS, INC., Appellee.
    No. 80-284.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 1, 1982.

      Eugene L. Heinrich and John R. Har-grove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellant.
    Borden R. Hallowes, Boca Raton, and Edna L. Caruso, West Palm Beach, for ap-pellee.
   HURLEY, Judge.

Southern Bell appeals a jury verdict which awarded $309,000 as a quantum me-ruit return to Acme Electrical in a quasi-contract action. Since there is record evidence supporting this verdict, we affirm.

Southern Bell sought bids for the construction of an addition to one of its buildings. Acme Electrical Contractors, Inc., (Acme) was the electrical subcontractor under the final contract signed between Southern Bell and the general contractor. The proposed addition was to cost approximately $1,700,000. The electrical costs of this addition were $304,000.

As work on the addition progressed, Southern Bell began requesting many changes in the electrical portion of the new construction. Acme, which had no express contract with Southern Bell, performed these requested changes. Since many of the changes Southern Bell requested were “last minute” in nature, Acme incurred significant expenses in the form of labor costs as electricians waited for Southern Bell to complete its plans. Southern Bell’s changes also extended the project’s completion date from an estimated nine months to eighteen months duration. This extension resulted in significant additional overhead expenses for Acme. For example, even though many of the changes requested by Southern Bell were outside the contract between Southern Bell and the general contractor, Southern Bell insisted that Acme submit its requisitions for payment through the general contractor. The general contractor, knowing nothing of these changes, refused to authorize payments on many of the invoices or for the labor expended. An explosion of paperwork, as Acme submitted invoices to the general contractor, then to Southern Bell, resulted. Although Southern Bell admitted paying Acme for $113,000 worth of extras, Acme claimed that more than $300,-000 was still due. Consequently, Acme sued Southern Bell in a quasi-contract action, seeking a quantum meruit return to prevent Southern Bell’s unjust enrichment. After a lengthy trial, the jury returned a $309,000 verdict in Acme’s favor. Southern Bell appealed, arguing (1) that there can be no action in quasi-contract where an express contract between the parties exists, (2) that there was an accord and satisfaction between the parties and (3) that there was insubstantial evidence to support the jury’s award.

Southern Bell’s first argument rests on the principle that the law will not imply a contract where a valid express contract exists. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (Fla.1928); Solutec Corp. v. Young and Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971). Professor Corbin, calling this statement “misleading,” notes that its real meaning is the following:

[W]here the parties have made an express contract, the court should not find a different one by “implication” concerning the same subject matter if the evidence does not justify an inference that they intended to make one.... [T]he fact that an express contract has been made does not prevent the parties from making another one tacitly, concerning the same subject matter or a different one.

3 A. L. Corbin, Corbin on Contracts § 564 (1960 ed.). Florida has followed this statement of the law. In DeLotto v. Fennell, 56 So.2d 518 (Fla.1952), the Supreme Court noted that where a construction contract exists and changes or alterations are requested “the law implies an obligation to pay the reasonable costs thereof in addition to the stipulated sum named by the parties in the original agreement.” 56 So.2d 518, 520. In the instant case, there was no express contract between Southern Bell and Acme. If the law allows quasi-contract recovery where an express contract already exists, it certainly will do so where there is no contract between the parties. For these reasons, we have no difficulty in finding that Acme properly stated a cause of action against Southern Bell.

Southern Bell’s second point on appeal is that an accord and satisfaction occurred between Southern Bell and Acme. Thus, Southern Bell maintains, Acme had no right to sue in the face of this defense.

Southern Bell’s accord and satisfaction argument stems from a meeting in Jacksonville, Florida where Acme and Southern Bell representatives met to discuss Acme’s claims. The meeting resulted in Acme’s accepting a cheek for some $47,000 on claims of approximately $80,000 against Southern Bell. Testimony indicated that Acme’s cash flow problems, rather than a resolution of the underlying dispute, prompted Acme’s acceptance of the check.

Generally, the determination of whether there is an accord and satisfaction is left to the finder of fact. Whether an accord and satisfaction exists is ordinarily a pure question of intent. Best Concrete Corp. v. Oswalt, 188 So.2d 587 (Fla. 2d DCA 1966). In the instant case, the evidence of the parties’ intent was conflicting. The jury, as finder of fact, resolved this conflict against Southern Bell. We are bound by that determination.

Finally, Southern Bell argues that there was no substantial competent evidence to support the jury’s award in favor of Acme. Admittedly, the voluminous record in this case is filled with contradictory evidence as to what was owed and what had already been paid. After a detailed review of the record and the evidence, however, we find that substantial competent evidence exists which fully supports the jury’s verdicts.

For these reasons, the judgment below is affirmed.

DOWNEY, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

I disagree with the majority opinion as to the issue of accord and satisfaction. Under the facts and proofs in this case, I believe accord and satisfaction was demonstrated as a matter of law and I would thus reduce the judgment by approximately $34,000 and affirm with this modification.


author: BERANEK, Judge.

text:
    JUNO BY THE SEA CONDOMINIUM APARTMENTS, INC., Appellant, v. JUNO BY THE SEA NORTH CONDOMINIUM ASSOCIATION (THE TOWER), INC., etc., et al., Appellees.
    No. 80-1697.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Edna L. Caruso, West Palm Beach, for appellant.
    Paul M. Sullivan, Jr., of Nason, Gildan, Yeager & Gerson, P.A., West Palm Beach, for appellees.
   BERANEK, Judge.

This appeal involves a non-jury trial which resulted in a final judgment for plaintiffs in the amount of $264,714.33.

The case was commenced as a class action by a condominium association and an individual owner of a condominium unit who was also president of the condominium association. The defendant was the developer, Juno by the Sea Condominium Apartments, Inc. The complaint upon which the case went to trial asserted the developer was guilty of breach of implied and express warranties and of negligence in the construction of the building. Our review of the court’s findings of fact shows that the court found against the plaintiffs on the issues of negligence but concluded that the developer breached certain express and implied warranties by failing to provide various items which were included in the original plans or which the developer expressly or impliedly added to the project.

On appeal the developer raises numerous points. Initially, the developer asserts the trial court erred in denying a motion to dismiss the suit as an improper class action and in failing to hold a hearing to determine and certify appropriate class status of plaintiffs. This point is without merit. It is now firmly established in this State that a condominium association may sue on behalf of all unit owners concerning matters of common interest, including but not limited to, the common elements of the building. See Florida Rule of Civil Procedure 1.221, formerly Florida Rule of Civil Procedure 1.220(b); The Florida Bar, 353 So.2d 95 (Fla.1977); Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976), and Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981). The record here shows that appellant moved to dismiss the complaint asserting that privity was required as to all class members and that the association had no standing to bring the action. This motion was denied. There was no request to have the class certified or for any hearing in that respect. Over two years after the first motion to dismiss, appellant filed a second motion to dismiss the class action aspects of the case. This motion was again denied and we conclude that harmful error has not been demonstrated. The association was a proper party plaintiff as to most, if not all, of the issues raised in the complaint. Dismissal of the action was certainly not warranted.

At the conclusion of . the trial, the court made specific findings of fact in regard to each claimed element of damage. We have reviewed these and find that all damages awarded related to construction omissions in the common elements, except for certain minor towel racks and grab bars which had not been installed in the individual units. As stated above, the trial court found against the plaintiff on the issue of negligence and concluded that the building was well constructed. However, the court also found that numerous items which were included in the original plans or which were impliedly or expressly added to the original plans were not included in the actual building. These items were not negligently or defectively constructed; they were simply omitted. The items for which damages were awarded included such things as a wading pool, a shuffleboard court, an emergency electric generator, window awnings and eaves, landscaping, sump pumps, benches, light fixtures, railings on retaining walls, parking spaces, and roof fill material. In Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981), this court specifically considered the question of whether the condominium association could recover for omissions and defects in common elements despite the fact that the unit owners within the association included both first purchasers and remote purchasers. This court stated as follows at pages 519 and 520:

Common Elements
We hold that as to common elements, the appellees may recover the entire damages on either theory, albeit the subsequent or remote purchasers will benefit thereby. To conclude otherwise and apportion the damages would penalize the original purchasers. In order for appel-lees to receive the benefit of their bargain and be made whole, the amount of damages awarded must equal the sum necessary to correct the condition.

We thus conclude that the association was entitled to recover the damages involved herein as applicable to the common elements and reject appellant’s arguments to the contrary.

Appellant also asserts evidentiary errors regarding the generator and concrete awnings and eaves. The trial court allowed $72,250 as the cost of an emergency electrical generator which was not installed, and $76,000 as the cost of certain concrete awnings and eaves which were required on the plans but not included in the building as actually constructed. We find no properly preserved error as to the evidence surrounding the generator but conclude that the trial court erroneously excluded certain evidence as to the awnings and eaves. The theory of plaintiff’s case was that these items were included on the original plans and that they were not constructed in accordance with the plans. The developer attempted to offer evidence that the awnings were to be bolted into the concrete walls and that it was later determined that this construction would be dangerous and unsafe. The general contractor could not find anyone who would cast the awnings and eaves as designed and thus ended up deleting the awnings and eaves and extending a slab out over the windows and at the top of the building. The trial court refused to allow into evidence testimony that these, modifications were brought about as the result of safety factors or impossibility of performance. It was plaintiff’s argument that under David v. B & J Holding Corp., 349 So.2d 676 (Fla. 3d DCA 1977), liability arose for the total cost of the awnings and eaves since there was no change made on the plans on file with the city. The court allowed some $76,000 in damages which represented the total cost of the awnings and eaves in accordance with the initial plan. The documents in the instant case allowed the developer to make modifications which did not require a material physical modification of the dwelling units. We conclude that the court erred in failing to at least consider this evidence of a necessary change from the plans and a substitution of an alternative. Furthermore, the court should not have simply awarded damages for the full amount ($76,000) required to build the awnings and eaves as included on the plans. Some credit should have been given for the value of the awnings and eaves as constructed.

We conclude that the judgment should be and hereby is affirmed in all respects except in regard to the $76,000 awarded for the awnings and eaves. We remand to the trial court for further proceedings as to this element of damages alone. The awnings and eaves are obviously common elements and the condominium association has the right to recover for the developer’s breach of warranty in failing to build in accordance with the plans and specifications. However, the trial court should consider the evidence as to whether the building, as initially designed, was unsafe or impossible to construct and whether the alternative provided by the builder constituted substantial compliance with the initial plans under all of the facts and circumstances.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


author: DAUKSCH, Judge. SHARP, Judge.

text:
    Pasquale Thomas LEONETTI, Appellant, v. STATE of Florida, Appellee.
    No. 80-1004.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.

      Charles R. Trulock, Jr., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for bookmaking, a violation of section 849.25, Florida Statutes (1981). The information charges:

. . . that Pasquale Thomas Leonetti, between September 1, 1979 and October 23, 1979 .. . did then and there engage in bookmaking contrary to Florida Statutes 849.25.

The appellant filed a motion at trial to dismiss the information on the basis that it was so vague and indefinite that it would not prevent multiple prosecutions for the same offense. See Rule 3.140(o), Florida Rule of Criminal Procedure.

The information in this case is as vague and indistinct as the information in State v. Covington, 392 So.2d 1321 (Fla. 1981), where the following allegations were ruled to be fatally deficient:

That the appellees, during the period from September, 1972 to January, 1979, “did directly or indirectly engage in transactions, practice or course of business with regard to the sale of the bonds of Lake Padgett Estates East Road and Bridge District, Extension No. 3, Pasco County, Florida, which operated as a fraud or deceit upon the said bondholders in connection with their purchase of the said bonds . . . contrary to Chapter 517.-301(l)(c). ...”

In State v. Dilworth, 397 So.2d 292 (Fla. 1981), the court held: “A mere allegation that an accused engaged in fraudulent transactions, practices, or course of business is not specific enough to inform a defendant of what he allegedly did wrong” and “an information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy.” Id. at 294. (emphasis supplied). In this case there are no elements expressed, thus the information is so vague and indefinite that it violates Article I, Section 16 of the Constitution of the State of Florida and Article VI of the Articles in Amendment of the Constitution of the United States of America. This information is, on its face, as constitutionally deficient as would be one which merely charged that one “did in violation of Florida Statute 784.04 commit the crime of murder” or that one “did in violation of Chapter 810 engage in burglary” or that one “engaged in theft in violation of Florida Statute 812.014.”

Section 849.25 limits the acts which would constitute the offense of bookmaking by its definition of bookmaking in subsection (1) which states:

(1) The term “bookmaking” means the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.

In order for an information to charge a crime sufficiently it must follow the statute, and charge each of the essential elements and sufficiently advise the accused of the specific crime with which he is charged. In a case of bookmaking, an information would be sufficient to charge the accused if it alleges the time and place, as is best known to the state, when and where the accused took or received a bet or wager concerning the result of the contest, trial, or event described in the statute. After all, the state must prove at trial what facts it maintains constitutes the violations of the statute; what burden is it to put in writing, before trial, the essential elements of the crime as alleged against the accused?

Because the information charging the appellant is fatally deficient we reverse the conviction of the appellant.

REVERSED.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge.

I dissent in this case because, under the circumstances presented by the record, I would affirm the trial judge’s conclusion that the information was not

so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o) (1981).

The information basically tracked the statute. Section 849.25(2), Florida Statutes (1981) provides, “Any person who engages in bookmaking shall be guilty of a felony . . . . ” The information charged that Leo-net’ti

between September 1, 1979 and October 23, 1979, in the said County and State [referring to Seminole County, State of Florida], did then and there engage in bookmaking contrary to Florida Statute 849.25.

Bookmaking is defined by the statute as

the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast, or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.

§ 849.25(1), Fla. Stat. (1981).

I do not think this information is imper-missibly vague because of the acts charged. In State v. Dilworth, 397 So.2d 292 (Fla. 1981), the Florida Supreme Court upheld an information which charged the defendant with making false statements to obtain unemployment compensation. The defendant argued the information should be dismissed because it merely tracked the criminal statute and it failed to recite any specific misrepresentations which the defendant allegedly made. The court noted that in some cases merely reciting the applicable criminal statute was enough, and in others it was not. The analysis apparently turns on whether the statutory language is so generic that it fails to inform the defendant as to what criminal acts he allegedly committed. Examples of such too-generic charges are “lewd and lascivious” acts and “fraudulent transactions, practices or course of business.” Id. at 293-94.

Whether or not “bookmaking” is too generic to pass muster has not been addressed by the Florida Supreme Court. Since the statute specifically defines “bookmaking,” use of that term, without describing the kinds of bets taken, does not appear to me to make the information impermissibly vague. The information in this ease is analagous to the information in Dilworth which withstood the same kind of challenge from the defendant who argued the kinds of misrepresentations had to be set forth in the indictment.

Further, I do not think the time and place allegations are too vague. This case can be distinguished from State v. Barnett, 344 So.2d 863 (Fla. 2d DCA 1977) where a “bookmaking” indictment which tracked the statute was quashed as impermissibly vague. The indictment in Barnett alleged the crime occurred over a period of more than three months in three different counties. Here the information alleged a time span of two months but it specified Seminole County as the locus of the criminal acts. Neither the Barnett indictment nor the instant information described the kinds of betting involved. The Barnett court held that the indictment’s time and place allegations were too vague. It said that, in view of the availability of a statement of particulars, no one of the Barnett deficiencies would itself have required the dismissal. Only when viewing the indictment as a whole did the court approve the trial court’s dismissal.

The record shows Leonetti, immediately upon his arrest, stated to the police officers that he had been engaged in bookmaking in a borrowed apartment. His arrest was brought about by observations of him by one of the apartment renters during a two day time period. The bill of particulars limited the charge to those acts in that time frame. Under these circumstances I cannot say the trial court erred in deciding Leonetti was not in fact misled or confused in the preparation of his defense. As the court stated in Dilworth,

With the advent of Florida’s liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document. While these discovery tools generally cannot cure a fatally vague charging document, they do reduce the danger of a defendant’s being in doubt as to the specifics of his alleged wrongdoing or of his being subjected to a new charge arising from the same act. In other words, an information is legally sufficient if it expresses the elements of the offense charged in such a way that the accused is neither misled or embarrassed in the preparation of his defense nor exposed to double jeopardy. (Emphasis added).

State v. Dilworth, 397 So.2d at 294.

      . See State v. DiGuillio, 413 So.2d 478 (Fla. 2d DCA 1982).

      . A statement of particulars provided Leonetti with precise details relating to a specific time (October 20, 21 and 22, 1979) and a specific place (the vicinity of Apt. 0-8, Regency Apartments, Seminole County, Florida).