author: ANSTEAD, Judge. ANSTEAD, Judge.

text:
    COMWEL DEVELOPMENT CORP., Appellant, v. The CITY OF DEERFIELD BEACH, Fidelity and Deposit Company of Maryland, Midwestern Sewer Contractors, Inc., Lawrence B. Isgette and James M. Montgomery Consulting Engineers, Inc., Appellees.
    No. 78-1337.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Rehearing Denied April 30, 1980.
    David L. Ross and William J. Berger, of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff, P. A., Miami, for appellant.
    Joe Easthope, of Houston, Faircloth, Cooper & Easthope, Fort Lauderdale, for appel-lee City of Deerfield Beach.
    Warren D. Hamann, Luis C. Bustamente, and R. Owen Ricker, Jr., of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P. A., Miami, for appellee Fidelity and Deposit Co. of Maryland.
   ANSTEAD, Judge.

This is an appeal by Comwel Development Corporation from a final declaratory judgment declaring Comwel to have no rights under payment and performance bonds issued by a compensated surety, ap-pellee Fidelity and Deposit Company of Maryland, by virtue of an assignment made of those rights to the appellee City of Deer-field Beach; and a corrected final declaratory judgment dismissing Comwel’s claim against the surety under the bonds.

Appellant Comwel is the owner and developer of Natura, a planned unit development (P.U.D.) in Deerfield Beach. On May 29, 1974, Comwel entered into an amended contract with Midwestern Sewer Contractors, Inc., for the construction and installation of water, sewer, and drainage systems for Natura Phase II. In compliance with the owner-contractor agreement, Midwestern secured payment and performance bonds from Fidelity which listed Comwel as the sole beneficiary. The payment bond obligated Fidelity to promptly pay subcontractors, materialmen or suppliers claiming nonpayment by Midwestern. The performance bond obligated Fidelity to either promptly remedy Midwestern’s defaults or promptly complete the contract with Com-wel in accordance with its terms or conditions or bid out the work left uncompleted to a third party.

The Deerfield Beach ordinance, in addition to requiring the developer to complete certain specified improvements within the P.U.D., required the developer to post a bond in favor of the city equal to 110% of the estimated construction cost of the required improvements.

To avoid the expense of additional payment and performance bonds in favor of the city, as under the city ordinance, the appellant-owner and developer, Comwel, assigned its interests in the existing payment and performance bonds it had with appel-lee, Fidelity, to the city to the extent of the bond requirements imposed by the city.

Comwel’s assignment to the city provided:

WHEREAS, COMWEL wishes development of the sewer, water and drainage systems on Natura P.U.D., Phase II in the City of Deerfield Beach; and WHEREAS, the CITY OF DEERFIELD BEACH has by ordinance -required that all contractors have a performance and payment bond for the development of sewer, water and drainage which lie inside any City right of ways and easements; and
WHEREAS, COMWEL presently has bonds running in its favor for payment and performance from Fidelity and Deposit Company of Maryland as surety, with Midwestern Sewer Contractors, Inc. as principal, and wishes to .give an assignment of its rights under these bonds to the City rather than obtaining new bonds;
NOW, THEREFORE, in consideration of the City not requiring new bonding by COMWEL, COMWEL does hereby assign all of its rights in and to a payment bond with Fidelity and Deposit Company of Maryland as surety and Midwestern Sewer Contractors, Inc. as principal dated June 7, 1974, a copy of which is attached hereto, together with an assignment of all right, title and interest in and to a performance bond wherein Fidelity and Deposit Company of Maryland is surety and Midwestern Sewer Contractors is principal dated June 7, 1974. Said assignment shall operate in the event of a default on behalf of Midwestern wherein performance and payment are due under said bonds by Fidelity and COMWEL, in the event of such a default or upon notice by the CITY of any default, shall notify Fidelity that it has assigned its rights under said bonds to the CITY and that the CITY shall have the right to enforce compliance under the terms and conditions of said bond. In the event that said surety will not accept the CITY as additional insured under said bond, then COMWEL agrees to obtain payment or performance directly from Fidelity and if necessary to remit the proceeds of any payment or performance unto the CITY. This assignment shall be operative only as to those portions of Natura P.U.D., Phase II which comes under the jurisdiction of Deerfield Beach and over which the CITY requires, pursuant to present ordinances, a performance and payment bond.

Subsequently, Comwel sued Fidelity, among others, on the payment and performance bonds, claiming that the contractor, Midwestern, had defaulted on the project. The city, also sued by Comwel, counterclaimed and sought a declaratory decree as to its rights under the assignment. Fidelity then stipulated that it would accept the city as an additional insured under the bonds. The trial court thereafter entered a final declaratory judgment holding that Com-wel’s rights under the bonds with Fidelity were completely extinguished by the assignment to the city. We reverse.

The ordinance under which the bond is required states:

The amount of the bond shall be in an amount equal to one-hundred ten per cent (110%) of the estimated cost of the construction of the improvements required by Section 4D.10(a), said estimate to be made by the City Engineer.

At trial the undisputed evidence was that the city engineer had determined that only the utility system up to the lateral lines running to the individual units would be subject to the bonding requirements. In this respect a memorandum from the city engineering department stated:

In accordance with the aforementioned paragraph of the ordinance [Section 413.05(b)] it is my interpretation that the entire utility system complete through the 6 inch water lines and fire hydrants and complete through every manhole in the development shall be deemed to be public and easements shall be rendered for all of the water, sewer, paving and drainage which is dedicated to the city either by easement or in dedicated right-of-way. Therefore, it is the intent of the engineering department to require such dedication for water and sewer systems and that they shall be bonded as prescribed by the ordinance under Section 4B.10 entitled STANDARDS IN GRITE-RIA FOR IMPROVEMENTS, paragraph (b) entitled “Bond”. In this section, a bond in the amount of 110% of the estimated cost of the construction of the improvements required by Section 4B.10(a) shall be posted covering all of the utilities to be dedicated as described above.

This determination by the engineering department as to the extent of the project required to be bonded was subsequently reiterated in a letter from the engineering department to Comwel.

Unless the provisions of a contract are clearly in conflict, the contract should be construed so as to give effect to all of its provisions and, unless clearly provided to the contrary, the contract should not be interpreted so as to render its operation inequitable as to either party. James v. Gulf Life Ins. Co., 66 So.2d 62 (Fla.1953). Here, there is no reason why all the terms of the assignment, including those provisions limiting the assignment to those portions of the project for which the city requires a bond, could not be given effect. Under such a construction, all of the parties, including Fidelity, will be liable or benefited for no more or less than the agreements provide. Fidelity’s liability, if any, remains the same, whether the liability runs to Comwel or the city, or both.

We agree with the trial court that the assignment, as between Comwel and the city, was a valid assignment of Comwel’s rights in the bonds to the extent of any damage suffered by the city which the bonds protect. However, we believe the trial court erred in concluding that the assignment extinguished all rights of Comwel in the bonds. Indeed, the assignment was made without the concurrence of Fidelity and the bonds themselves contained a prohibition against assignment. Comwel promised, however, to enforce the bond for the benefit of the city to the extent of the city’s interest in the protection provided by the bonds. The assignment could hardly be absolute if it was necessary for Comwel to enforce the bonds for the city’s benefit. Rather, we believe that Comwel retained its rights under the bonds subject to the rights of the city to recover any damages suffered by the city.

In accordance with the determination of the city engineer, supra, the city’s interests to be covered by the bonds included the entire system exclusive of the laterals. Since Fidelity stipulated at trial that it would accept the city as an additional insured, both the city and Comwel have the right to prosecute claims against Fidelity to the extent of their respective interests. The existence or validity of such claims is not at issue herein.

Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent herewith.

DOWNEY, C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.

ON PETITION FOR REHEARING

ANSTEAD, Judge.

Upon consideration of the petition for rehearing we are of the opinion that the parties are entitled to a new trial as to the meaning of the assignment in question. We have found the assignment to be ambiguous whereas the trial court found no ambiguity, refused the admission of parol evidence and ruled that the assignment was complete and absolute. Although the evidence in the record relied on by the appellant supports the construction we have placed on the assignment set out in our original opinion, we believe that the parties should have an opportunity to present parol evidence as to the meaning of the terms of the assignment before the issue is resolved. Accordingly, our previous opinion is modified to the extent that we now remand this cause for a new trial and in all other respects the petition for rehearing is denied.

DOWNEY, C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    WADE BRADFORD GROVE SERVICE, INC., Petitioner, v. BOWEN BROS., INC., Respondent.
    No. 79-658.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1980.
    On Motion For Rehearing or Clarification April 2, 1980.
    H. Vernon Davids, P. A., Winter Garden, for petitioner.
   HOBSON, Acting Chief Judge.

Petitioner Wade Bradford Grove Service, Inc. seeks review of a final administrative order rendered by the Florida Department of Agriculture & Consumer Services which dismissed Bradford’s complaint against respondent Bowen Bros., Inc. We reverse.

In September, 1978, the parties entered into a contract whereby Bradford was to furnish 12,000 boxes of Temple oranges to Bowen Bros, at a price of 75 cents per pound solids. Most of the Temples with which Bradford had intended to fill the contract were frozen. Bradford paid $1.00 per pound solids for Temples from other sources to fulfil the contract. The complaint against Bowen Bros, is predicated on the 25 cents difference in price paid by Bradford for the additional 9,044 boxes of Temples. Total damages claimed amount to $12,461.75.

At the formal hearing, Wade Bradford, President of Bradford Grove Service, Inc., presented unrebutted testimony concerning the events giving rise to his complaint. He stated that when he informed Gilbert Bowen that he would be unable to fill the contract from his initial source due to the freeze, Mr. Bowen told him that Bowen Bros, would purchase the deficit amount from other sources for $1.05 per pound solids and charge this amount back against fruit which had already been delivered by Bradford to Bowen Bros. Bradford testified that he purchased the Temples for $1.00 per pound in order to mitigate the charge back. Bradford further stated that he and Bowen discussed the situation several times but were unable to come to a definite price agreement. At the end of the season, Bradford gave Bowen all his pertinent records and presumed that Bowen planned to “look it over and try to settle it. But we never could settle it.”

Although Gilbert Bowen appeared at the informal prehearing conference in order to clarify his understanding of the contractual arrangement, he did not appear at the final hearing nor was he represented by counsel. Ms. Arlene Schuford, Secretary-Treasurer of Bowen Bros., offered testimony; however, her statements were not in rebuttal to Wade Bradford’s argument.

The final order stated:

The Commissioner finds and determines that if (as admitted by Complainant), Complainant was under no obligation to replace the frozen Temples, it must be considered to have done so voluntarily. There is no indication in the record that the Respondent promised to pay Complainant the 25 cents per pound difference. Accordingly, based on the evidence and testimony submitted, Commissioner is of the opinion that the record fails to disclose that Respondent has violated any provisions of the Florida Citrus Code. Accordingly, the Complaint against the Respondent be and the same is hereby dismissed.

This conclusion is in conflict with Bradford’s unrebutted testimony. Therefore, pursuant to Section 120.68(10), Florida Statutes (1977), we hold that the dismissal of petitioner’s complaint was not supported by competent substantial evidence in the record. Therefore, we grant the petition for review, set aside the final order of dismissal, and remand the cause for further proceedings in which the hearing officer may take additional testimony to determine specifically whether the contract in dispute was a “production contract” only requiring delivery of all the Temple oranges from a specific grove or one that required unconditional delivery of 12,000 boxes of Temple oranges.

PETITION GRANTED.

SCHEB and DANAHY, JJ., concur.


author: WENTWORTH, Judge. WENTWORTH, Judge.

text:
    TIMES PUBLISHING CO. and R. P. Hewitt & Associates, Appellants/Cross-Appellees, v. Eugene WALTERS, Appellee/Cross-Appellant.
    No. QQ-380.
    District Court of Appeal of Florida, First District.
    March 4, 1980.
    Rehearing Denied April 17, 1980.

      Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellants and cross-appellees.
    Robert P. Byelick, of Lyle & Skipper, P. A., St. Petersburg, for appellee and cross-appellant.
   WENTWORTH, Judge.

The employer/carrier appeals and the claimant cross-appeals a worker’s compensation order, which we affirm.

The claimant, a 14-year old newsboy, arrived at his work station at a time in the afternoon when he had previously obtained papers for delivery to certain customers just before his regular shift, but was told by the 9-year old newsboy on duty that he could not have his papers at that time. During this enforced lull the claimant and another youth engaged in a footrace which resulted in injury to the claimant. Since the injury arose out of the footrace, the initial question is whether there occurred such a deviation as to take the activity outside the course of employment. See 1A Larson, The Law of Workmen’s Compensation, § 23.16 (1972).

In Boyd v. Florida Mattress Factory, Inc., 128 So.2d 881 (Fla.1961), the claimant’s injury was held to be compensable despite the fact that it resulted from horseplay. See also, Publix Supermarkets, Inc. v. Murdock, IRC Order 2-3652 (Jan. 15, 1979), cert. denied, 379 So.2d 208 (Fla. Dec. 17, 1979); Stitz v. City of Tampa, 4 FCR 182 (1960); Bramen v. Princeton Farms, Inc., 3 FCR 279 (1958), cert. denied, 106 So.2d 240 (Fla. 3rd DCA 1958); Webb v. Perini, Walsh, Mills & Blythe Bros., 2 FCR 9 (1956). An examination of those opinions indicates that the classification of horseplay as a substantial deviation precluding compensability depends on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation (whether it involved an abandonment of employment duties), (3) the extent to which similar activity had either been forbidden or had become an accepted or tolerated practice, and (4) the extent to which such horseplay may have been expected or reasonably foreseeable in the employment. In 1A Larson, The Law of Workmen’s Compensation, § 23.65 (1972), the author suggests that when horseplay occurs during a lull in the work this factor is of considerable importance, since the deviation does not involve the abandonment of any work duties and may even be an expected consequence of a waiting period. See generally, Brannen, supra and Webb, supra.

The present case involves a momentary deviation without obvious danger which occurred during a lull in work with no abandonment of employment duties. Such conduct has been associated with employments utilizing employees lacking in maturity. Murdock, supra. The order on appeal appropriately notes that the claimant’s youth and energy were qualities directly contributing to his value to the appellant employer. When the relevant criteria are considered with the totality of the circumstances in this case, we find that the deputy commissioner did not err in his conclusions to the effect that the deviation was insubstantial, that the claimant remained in the course of his employment, and that the accident arose out of that employment.

Accordingly, the order appealed is affirmed.

ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

WENTWORTH, Judge.

The appellee/cross-appellant asserts in this motion for rehearing or clarification that § 440.14(5), Florida Statutes, should have been utilized in determining the claimant’s average weekly wage. The statute provides that:

If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.

However, the appellee/cross-appellant failed to present sufficient evidence to establish that the minor claimant’s “wages should be expected to increase during the period of disability . . .” [e.s.]; § 440.14(5), Florida Statutes, is thus inapplicable in the circumstances of this case, as presented before the judge of industrial claims.

The motion for rehearing is denied.

ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.


author: BERANEK, Judge.

text:
    C. James GAROFALO and Margaret Garofalo, Appellants, v. COMMUNITY HOSPITAL OF SOUTH BROWARD, Appellee.
    No. 77-1733.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Rehearing Denied May 14, 1980.

      Ira M. Krauss of Law Offices of Kenneth P. Wurtenberger, Lauderhill, for appellants.
    Charles T. Kessler of Pyszka, Kessler, Adams & Solomon and Nancy Little Hoff-mann, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal by plaintiffs from an adverse summary judgment based on the two-year statute of limitations governing medical malpractice by a health care provider. The accident occurred on February 26,1972, when plaintiff was a patient in the defendant/hospital. Plaintiff alleged she fell and was injured in her room due to the hospital’s negligence in failing to answer her call for assistance through a nurse paging device. The plaintiff was immediately aware of her injury and her cause of action on the date of the occurrence.

Suit was filed on February 24, 1976, just short of four years from the date of the accident. Plaintiff/appellant contends the cause of action accrued on February 26, 1972, and that the claim is governed by the four-year statute of limitations in Section 95.11(4), Florida Statutes (1969). Defendant/appellee relies upon Section 95.11(6), Florida Statutes (1971), the medical malpractice two-year statute of limitations arguing the trial court was correct in holding the suit barred. We reverse.

Before July 1, 1972, medical malpractice resulting in injury was not distinguished under the statute of limitations from any other negligence. Prior to that date, Section 95.11(4), Florida Statutes (1969), provided:

Actions other than those for the recovery of real property can only be commenced as follows:
******
(4) WITHIN FOUR YEARS — Any action for relief not specifically provided for in this chapter.

All negligence actions were considered within this general four-year statute of limitations.

A change occurred in the 1971 legislative session with the passage of Laws of Florida 71-254. Section 95.11(6) was amended as follows:

(6) WITHIN TWO YEARS — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; an action arising upon account of an act causing a wrongful death; an action to recover damages for injuries to the person arising from any medical, dental, optometric, podiatric or chiropractic treatment or surgical operation, the .cause of action in such case not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

This amendment appears as Section 95.-11(6), Florida Statutes (1971), and took effect on July 1, 1972. This amendment removed actions for injuries from medical treatment from the prior four-year limitation and placed them under a two-year statute. No expression of legislative intent as to retroactive application was stated.

The next substantive amendment occurred in 1974. Laws of Florida 74-382, effective January 1, 1975, was adopted and appeared as Section 95.11(4)(a), Florida Statutes (Supp.1974). It accomplished a substantial rewording of the general statute of limitations. It provided in part:

(4) WITHIN TWO YEARS.—
(a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered' with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

A saving clause was also provided in Section 95.022, Florida Statutes (Supp.1974) as follows:

95.022 Effective date; saving clause. —This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.

The statute enacted by Laws of Florida 74-382, effective January 1, 1975, was in existence for only four months and twenty days when the 1975 Legislature enacted 75-9, effective May 20, 1975, which again substantially revised limitation periods applicable to medical malpractice. In accordance with this amendment, Section 95.-ll(4)(b) provided:

95.11 Limitations other than for the recovery of real property — Actions other than for recovery of real property shall be commenced as follows:
# # # * * *
(4) WITHIN TWO YEARS
* # # * * *
(b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.

The 1975 amendment, like all amendments other than those enacted in 1974, contained no expression regarding prospective or retrospective application. The 1975 amendment was the first statute which ever defined medical malpractice and which expressly included actions against a “health care provider.”

The trial court found plaintiffs’ cause of action barred by the two-year limitation and the question is simply when did the two-year statute become effective as to suits for negligence against hospitals in their capacity as a health care provider. We start with the basic proposition that a shortening of any statute of limitations will be given retroactive application only upon the showing of clear intent by the Legislature. Foley v. Morris, 339 So.2d 215 (Fla. 1976); DeLuca v. Mathews, 297 So.2d 854 (Fla. 4th DCA 1974); and Maltempo v. Cuthbert, 288 So.2d 517 (Fla. 2d DCA 1974).

Clearly, there has been no expression of an intention to apply the two-year statute of limitation retroactively except for the saving clause in Section 95.022, Florida Statutes (1974), which has been asserted as an expression of such intent. The effect of the clause in medical malpractice cases has been considered by this court in Nash v. Asher, 342 So.2d 1038 (Fla. 4th DCA 1977), and Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978). These cases reach inconsistent results and we hereby recede from the holding in Nash and adopt the holding in Brooks.

Nash held 95.022 to be an effective expression of legislative intent to apply 95.-11(4), Florida Statutes (1975), retroactively to medical cases. Brooks, on the other hand, held Section 95.022 did not show intent to apply 95.11(4), Florida Statutes (Supp.1974), retroactively to medical malpractice cases. (Although Nash referred to Statutes 1975 and Brooks to Statutes (Supplement 1974), they both considered essentially the same statute.) Brooks reasoned that the saving clause did not show retroactive intent because the limitation for medical malpractice was not shortened in the amendment containing the saving clause; the limit had been previously shortened to two years in 1971. Thus, Brooks concluded the cause of action was not an action barred by this act (the 74-382 act) which had not been barred by prior law as provided in the saving clause 95.022. We find Brooks to be the better reasoned construction of the statute. Also see, Nelson v. Winter Park Memorial Hospital Ass’n, 350 So.2d 91 (Fla. 4th DCA 1977).

Since, in accordance with Brooks v. Cerrato, supra, we find the saving clause (Section 95.022) not to express a clear or manifest legislative intent to apply Section 95.11(4), (Supp.1974), retroactively, the statute did not apply to plaintiff’s cause of action which accrued prior to its effective date. Here the cause of action accrued on February 26,1972, and the four-year limitation period in effect at that time was controlling. Furthermore, we are persuaded by the fact that “health care providers” were specifically included within the medical malpractice statute of limitations effective May 20, 1975.

We conclude that the trial court erred in holding this claim to be barred by the two-year limitation period but in deference to the trial judge, we recognize he did not have the benefit of our present ruling regarding the Nash case. We believe the principle is well stated in Foley v. Morris, 339 So.2d 215 (Fla.1976), where the Supreme Court quoted from Maltempo. v. Cuthbert, 288 So.2d 517 (Fla. 2d DCA 1974), as follows: “Our conclusion is that where there is reasonable doubt concerning legislative intention to provide for retroactive application of a shortened limitation period, the benefit of this doubt should be given to the person with the existing cause of action.” We reverse the summary judgment and remand for further proceedings.

REVERSED AND REMANDED.

SMITH, CHARLES E., Associate Judge, concurs.

CROSS, SPENCER C., Associate Judge, dissents without opinion.


author: PER CURIAM.

text:
    Glenn BROOKS, Appellant, v. HAINES CITY CITRUS GROWERS ASSOCIATION and Employers Insurance Company of Wausau, Appellees.
    No. QQ-351.
    District Court of Appeal of Florida, First District.
    March 7, 1980.

      J. Mason Wines of Stanley, Wines, Williams & Smith, Auburndale, for appellant.
    Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellees.
   PER CURIAM.

Appellant, Glenn Brooks, brings this appeal from a final workers’ compensation order entered May 29, 1979. The order awarded appellant permanent partial disability benefits based on a 50% loss of wage earning capacity. The deputy commissioner specifically found that a bona fide job search would develop light types of employment which appellant could perform. Appellant contends the deputy erred in finding appellant had sustained no more than a 50% permanent partial disability of the body as a whole based on loss of wage earning capacity. (Point I.) Appellant further disputes the finding that a bona fide job search would reveal available employment within his capability. (Point II.)

Appellant, age 33, has a ninth grade education and a job history in heavy, unskilled labor. He was employed as a fruit picker on February 2, 1977, when he fell off a defective ladder and sustained a herniated intervertebral disc. The treating neurosurgeon opined appellant reached maximum medical improvement on June 23,1977, with a 25% permanent partial impairment of the body as a whole. The treating orthopedic surgeon, Dr. Pfaff, concurred with this rat-' ing and diagnosed chronic adhesive arach-noiditis, involving nerve root and spinal cord inflammation. However, Dr. Pfaff felt appellant could perform light work, such as that of an office clerk, if he could change his body position at least hourly, whether sitting, standing or walking. Psychological tests performed on appellant revealed that he had a third to fifth grade reading ability and that his motor skills were possibly affected by a minimal brain dysfunction. Regarding manual dexterity, he ranked in the tenth percentile compared to general factory workers. His intelligence ranked in the borderline retarded range, or at best, the dull to normal range. Emotional and motivational difficulties were noted.

Based on these tests, a vocational counselor, Dr. Pyne, concluded there would be few positions appellant could qualify for, even with reduced pain. Another rehabilitation counselor, Mr. Watson, also concluded appellant was probably unemployable due to his physical problems combined with a negative outlook regarding his pain. A job placement specialist in appellant’s home county, Mr. Younse, helped appellant initiate an extensive job search with over thirty potential employers. Following the job search, Mr. Younse opined appellant was sincerely interested in finding work, and he testified that appellant was unable to secure employment because of his back injury. At the hearing, appellant testified he experiences constant leg and back pain, has to go to bed several times a day, has trouble completing even the simplest tasks and cannot stand, sit or drive for prolonged periods.

We reverse the deputy’s award of permanent partial disability because the record is clear that appellant has sustained a total loss of wage-earning capacity, according to the relevant criteria from Walker v. Electronic Products and Engineering Co., 248 So.2d 161 (Fla.1971). Although he is only 33 years old, appellant has a very limited education and a job history in unskilled heavy manual labor. As a result of his industrial accident, he suffers constant pain, and his back condition makes it impossible for him to return to physical labor. While Dr. Pfaff testified appellant physically might be able to perform light office work, despite his restrictions, it is obvious that appellant’s limited intellectual abilities preclude such work.

Appellant’s inability to compete in the open labor market has been amply demonstrated by his failure to find any work since his accident. The record supplies convincing reasons why he could not find a job, despite numerous visits to potential employers, and the vocational testimony indicates appellant’s post-injury physical condition constitutes a major impediment to his finding a suitable job. In addition, the medical testimony reveals that appellant could only function in a job where he could change positions frequently. Appellant himself testified to the heavy burden of pain which he suffers.

Appellant clearly met his burden of showing it is unlikely he can resume gainful employment, and the burden shifted to the employer/carrier to present evidence showing some work was available within appellant’s capabilities. Ross v. Roy, 234 So.2d 99 (Fla.1970); Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960). The employer/carrier did not come forward with such evidence, and the deputy had no evidence from which to find a bona fide job search would turn up available work within appellant’s capacity.

Reversed and remanded for entry of an order consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Roy Leonard DUNN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1545.
    District Court of Appeal of Florida, Second District.
    March 14, 1980.
    Rehearing Denied April 23, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Thomas J. Sherwood, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant pled nolo contendere to a charge of possession of marijuana, reserving the right to appeal the denial of his motion to suppress.

Undercover police officers purchased a baggie of marijuana from Harold Bailey in the living room of a mobile home. Appellant, who was a companion of Bailey, was in the living room when the purchase took place but did not participate in the transaction. As soon as the officers made the purchase, they placed Bailey under arrest, and one of them searched appellant. In the course of the search, the officer felt a cylindrical object in appellant’s right front shirt pocket. He suspected that the object was marijuana and had no apprehension that it was a weapon. He removed the object, and, his suspicions being confirmed, placed appellant under arrest.

We reject appellant’s first argument that the officers had no right to search him for any purpose. There was ample basis under the stop and frisk law, Section 901.151, Florida Statutes (1979), for the officers to conduct a limited search to determine whether appellant was carrying a weapon. Appellant was obviously associated with Bailey and knew the drug transaction had taken place. Moreover, the officers had already ascertained that Bailey had a gun. Under the circumstances, the officers had a right to be concerned over whether appellant might seek to come to Bailey’s assistance. On the other hand, not even the state suggests that the officer had probable cause to arrest appellant prior to the time he actually removed the marijuana from appellants’ possession. The question then is whether the officer, upon encountering an object during the course of his weapon search which he suspected to be marijuana, had the right to seize it even though he had no apprehension that it might be a weapon.

Less than two years ago our court faced the same issue on essentially the same facts in Meeks v. State, 356 So.2d 45 (Fla.2d DCA 1978). In Meeks we pointed out that the legislature predicated the stop and frisk statute on the holding of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which outlined the circumstances under which law enforcement officers could detain suspects and search them for weapons when there was no probable cause for arrest. In quashing the search in Meeks, we said:

Our reading of the Terry decision and cases from other jurisdictions which have interpreted Terry leads us to believe that the language we have quoted [Section 901.151(5)] means that an officer in a stop and frisk situation may not extend his search beyond a pat down of a suspect’s outer clothing unless that pat down or other circumstances leads the officer to conclude that the suspect has a weapon on his person. State v. Handspike, 142 Ga.App. 104, 235 S.E.2d 568 (1977); People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970); People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379,461 P.2d 659 (1969). Clearly then, since Officer Byrd knew the lump in appellant’s pocket was not a weapon he could not legally reach into the pocket and pull out the plastic bag.

356 So.2d at 46. In Fraley v. State, 374 So.2d 1122 (Fla. 4th DCA 1979), the Fourth District Court of Appeal followed our lead by reaching the same conclusion.

Regardless of these decisions, we have chosen to revisit the issue raised by this case because a legitimate argument can be made that when a policeman encounters contraband during a legal stop and frisk, he should be able to seize it and make an arrest on the premise that he has become aware that the suspect is committing the crime of possession of contraband in his presence. Moreover, we note that Section 901.151(5), which outlines the circumstances under which an officer may make a search for weapons, concludes with the statement that if “such a search discloses such a weapon or any evidence oi a criminal offense it may be seized.” (Emphasis added.) Therefore, we have conducted further research to try to make certain that we reach the correct result.

Despite our efforts, we have found no case in the United States which has upheld a search and seizure under circumstances similar to this. At the same time, we have found several more cases which reached the same conclusion that we arrived at in Meeks. Tinney v. Wilson, 408 F.2d 912 (9th Cir. 1969); People v. Taylor. 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972); People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970); People v. Dixon, 14 Ill.App.3d 521, 302 N.E.2d 709 (1973); State v. Sears, 39 Ohio Mise. 65, 315 N.E.2d 855 (Piqua Mun. Ct. 1973). The rationale of most if not all of these cases seems to be that the stop and frisk authorized by Terry v. Ohio is an exception to the ordinary constitutional principles on search and seizure and as such is strictly limited by the language in Terry which reads as follows:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911 (emphasis added). .

Perhaps the unspoken reason for limiting searches and seizures to objects thought to be weapons is that any other rule would have the practical effect of allowing law enforcement officers to search for contraband with less than probable cause on the ostensible premise of looking for weapons. Be that as it may, we have decided to adhere to our decision in Meeks.

This leaves us to consider the effect of the last sentence of Section 901.151(5). If this language exceeds the constitutional parameters established by the United States Supreme Court, we are obligated to strike it down as unconstitutional. However, we believe it can be construed in a manner which will preserve its validity. Thus, we hold that the last sentence of subsection (5) means only that if in the course of a legal stop and frisk, a law enforcement officer removes from a suspect’s possession an object which he believes might be a weapon, but finds that instead of it being a weapon it is “evidence of a criminal offense,” he may still seize it. The seizure of contraband or other evidence of a crime during a legal stop and frisk is permissible so long as the officer reasonably believes the object which he is acquiring might be a weapon. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975); Williams v. State, 294 So.2d 37 (Fla. 3d DCA 1974).

Finally, we reject the state’s argument that even if the search of appellant was invalid under the stop and frisk law, we should uphold it as a search of the immediate area incident to the arrest of Bailey. We do not believe that "the search of the area within the immediate control of an arrested person, which cases such as Ackles v. State, 270 So.2d 39 (Fla. 4th DCA 1972), permit, includes the search of another person who happens to be standing nearby.

We vacate the judgment and the order placing appellant on probation and reverse the order denying the motion to suppress. We remand the case for such further proceedings as may be appropriate.

HOBSON and BOARDMAN, JJ., concur.

      . If the officer “knew” the object was marijuana, as might have been the case if he could have seen the baggie before he removed it, then presumably he would have had probable cause to arrest appellant at that time and make a lawful search incident to the arrest. See People v. Hawxhurst, 264 Cal.App.2d 398, 70 Cal. Rptr. 253 (1968).

      . The case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), decided by the United States Supreme Court at the same time as Terry lends support to this construction, though that case is distinguishable on the facts.


author: DAUKSCH, Chief Jud&e.

text:
    Grace Evelyn SQUITIERI and Paul T. Squitieri, her husband, Appellant, v. AETNA CASUALTY & SURETY COMPANY, etc., et al., Appellee.
    No. 00-486/T1-149.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    Rehearing Denied April 29, 1980.

      Karl O. Koepke and Gary E. Doane, Orlando, for appellant.
    Noah C. McKinnon, Jr., of Coble, McKin-non, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellees, Dipo and Renu Sani.
    No appearance for appellee, Aetna Cas. & Sur. Co.
   DAUKSCH, Chief Jud&e.

In this appeal from a summary final judgment appellant has demonstrated there were genuine issues of material fact which were decided by the trial judge when he entered the judgment. If a trial judge determines the evidence to be insufficient to support a verdict, the appellee is entitled to a directed verdict or a judgment n. o. v. However, this determination cannot be made by summary judgment, where all questions of fact must be resolved in favor of the non-moving party. Should a genuine issue of material fact be extant, the summary judgment must be denied. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The issues the plaintiff raises here concern her injury as a result of the alleged negligence of the individual defendants. She says she was injured when a sheet of glass resting atop a bed headboard fell as she was performing her duties as a maid in removing dust from the area. The individual defendants have answered by saying they did not breach their duty of care as business inviters; that their knowledge of a latent defect was less than the plaintiff’s knowledge; and have implied that the plaintiff “assumed the risk” or was one hundred percent comparatively negligent. All of this may be true, and even more, but a summary judgment hearing is not when those things are decided. The scores of cases following Holl can be cited as authority for the proposition that summary judgments are rarely upheld in personal injury cases because the nature of those cases involve disputes of fact almost invariably. While we see few summary judgments awarded in personal injury cases we find many properly entered in other areas of the law such as mortgage foreclosures, "suits on notes or contracts and other cases founded upon written instruments where there are no genuine disputes over material issues of fact.

The summary judgment is reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

UPCHURCH, J., concurs.

CROSS, J., concurs only in conclusion.


text:
    STATE of Florida, Appellant, v. Rudolph PEREZ, Appellee.
    No. 79-61.
    District Court of Appeal of Florida, Second District.
    March 19, 1980.
    Rehearing Denied April 23, 1980.

      Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    J. Scott Taylor, Tampa, for appellee.
   PER CURIAM.

Appellee Perez was indicted for the first-degree felony murder of his coperpetrator of an arson, Tomargo, who died of burns sustained in the course of perpetrating the offense. The indictment alleges that appel-lee perpetrated the arson, and the facts available to this court indicate that appellee was present at the scene when the arson was committed. The trial court dismissed the indictment on the authority of this court’s opinions in State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971), and Wright v. State, 344 So.2d 1334 (Fla. 2d DCA 1977).

In Williams, the accused, who was charged with first-degree felony murder, procured the victim, Hannsen, to set a fire and was not present when the deed was done. Hannsen was fatally burned when he accidentally set fire to himself while attempting to perpetrate the arson. This court held that a death by the victim’s own hand and not in the presence of the accúsed was simply not a criminal homicide. We think Williams was correct up to that point. However, Williams went further, additionally holding that the first-degree felony murder statute is applicable only when an innocent person is killed as a result of events set in motion by a person or persons acting in furtherance of the commission of, or an attempt to commit, one of the felonies enumerated in the statute.

The test we suggest is predicated upon the obvious ultimate purpose of the felony-murder statute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. The method employed by the statute to accomplish this purpose is, of course, to create a deterrent to the commission of such felonies by substituting the mere intent to commit those felonies for the premeditated design to effect death which would otherwise be required in first degree murder if someone were killed in the commission thereof. But we emphasize that the statute is primarily designed to protect the innocent public; and it would fee incongruous to reach a conclusion having the effect of placing the perpetrators themselves beneath its mantle. Holding that the facts herein constitute first degree murder would give the statute just such an effect and would render the accused answerable equally as though he were responsible for the death of an absolutely innocent person. We think such result anathema to the statutory purpose. So really, in these cases, the inquiry should be simply whether an innocent person was killed. [Footnote omitted.]

254 So.2d at 550-551. Wright reached a similar result concerning the second-degree felony murder statute.

While we agree with the trial court that Williams appears to be controlling here under the rule of stare decisis, we feel we must recede from the “innocent person rule" as espoused in Williams in light of our supreme court’s holding in Mikenas v. State, 367 So.2d 606 (Fla.1978). In Mikenas, the court was concerned with Section 782.04(3), Florida Statutes (1977), the second-degree felony murder statute, rather than Section 782.04(1), the first-degree felony murder statute. While expressly declining to decide whether this court’s reasoning and rationale in Williams were correct, the supreme court affirmed Mikenas’. conviction of the second-degree felony murder of one of his coperpetrators, who had been shot and killed by a policeman attempting to apprehend him. The court stated: “The language of Section 782.04(3) is not ambiguous or vague. It refers to ‘a person’ and must mean ‘any person.’ If the Legislature had intended something other than this, it could have inserted the word ‘innocent.’ ” Id. at 609. The court went on to hold specifically that there was nothing in the clear language or history of Section 782.04(3) which limited its application to the death of innocent persons. See also Judge Ott’s well-reasoned dissent in McRae v. State, 355 So.2d 1252 (Fla. 2d DCA), cert. denied, 360 So.2d 1250 (Fla.1978).

We believe that the analysis of Section 782.04(3) in Mikenas is equally applicable to Section 782.04(1). Thus, while Williams may not be in direct conflict with Mikenas, different statutes being involved in the two cases, it is in conflict with the rationale of Mikenas and should be receded from to the extent it is in conflict with Mikenas.

Accordingly, the trial court’s order dismissing the indictment against appellee is REVERSED and the cause REMANDED.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.

      . Wright v. State, 344 So.2d 1334 (Fla. 2d DCA 1977), is not necessarily controlling, since it involves a different statute. In any event, it was overruled sub silentio by Mikenas v. State, 367 So.2d 606 (Fla.1978), and has subsequently been reversed. State v. Wright, 379 So.2d 96 (Fla. 1979).

      . Notwithstanding the incorrect rationale upon which the holding in State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971) was ultimately predicated, we believe, as mentioned earlier in this opinion, that the result in Williams was nevertheless correct. Our conclusion is based on differences in the wording of the two statutes. Section 782.04(l)(a) provides in pertinent part: “The unlawful killing of a human being, . . . when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, . . [one of the enumerated felonies] shall be murder in the first degree . .
      Section 782.04(3) provides in pertinent part: “When a person is killed in the perpetration of, or in the attempt to perpetrate, . [one of the enumerated felonies] the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree . .
      Section 782.04(l)(a), the first-degree felony murder statute, requires an unlawful killing. The accidental death of a person at his own hands is not unlawful. Thus, Williams could not be held to account for Hannsen’s death under this statute. Section 782.04(3), however, requires only that a person be killed in the perpetration of one of the enumerated felonies. Williams could have been charged with second-degree murder as a result of Hannsen’s death.
      In the instant case, the facts presently before this court do not clearly indicate whether Tomargo died as a result of his own actions, acts committed by appellee, or a combination of the two. If appellee’s actions were even in part the cause of Tomargo’s death, the killing was unlawful and Section 78.04(l)(a) is applicable.


author: ULMER, RAY E., Jr., Associate Judge.

text:
    Mildred VOLOSIN, Appellant, v. Robert VOLOSIN, Appellee.
    No. 79-882.
    District Court of Appeal of Florida, Second District.
    March 19, 1980.
    Rehearing Denied April 29, 1980.

      John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appellant.
    Alan J. Kerben, Tampa, for appellee.
   ULMER, RAY E., Jr., Associate Judge.

Mildred Volosin appeals the terms of a final judgment of dissolution alleging in part that the lower court erred in failing to award her permanent alimony. We agree and reverse.

The parties were married in 1973, at a time when appellant was employed in a furniture store. She brought to the marriage a car, some furniture, and $4,000.00 in cash. Between the years 1973 and 1975, appellee worked sporadically as a trucker, and appellant supported both herself and her husband during appellee’s periods of unemployment. In 1975, appellee and a partner commenced operation of a truck brokerage firm in the state of South Carolina. In 1976, appellee formed his own truck brokerage firm in which appellant worked. The financial matters with respect to the truck brokerage firm and the parties individually were rather loosely handled in that business and personal funds were co-mingled; and, despite a business gross of up to $47,000.00 in 1978, appellee testified that their actual net income amounted to only $10,000.00. It was also established in the record that the parties owned a 1978 Lincoln automobile and apparently lived rather comfortably in motels and hotels while engaged in the operation of the truck brokerage firm in and among several states.

Appellee occasionally beat appellant while he was under the influence of alcohol. After one such beating in August 1978, appellant left appellee, taking with her approximately $17,000.00 from various business accounts. At the time of the final hearing, appellant listed no income and few assets, with expenses totaling $1,400.00 per month. Appellant testified that she suffered from spinal arthritis and as a result could no longer follow her previous line of work because she could not stand for the long periods of time necessary to fulfill the duties of a sales person. Appellee, at the time of final hearing, was still operating the truck brokerage firm and testified that it was $20,000.00 in debt. Nevertheless, appellee offered no evidence before the trial court to show an inability to make alimony payments.

The trial court ordered that appellant return $6,600.00 of the business funds to appellee, denied a claim by appellant for a special equity in the truck brokerage business, denied permanent alimony, awarded appellant rehabilitative alimony in the amount of $400.00 per month for twelve months, and awarded each party the personal property they then had in their possession.

The factors governing alimony contained in Section 61.08(2), Florida Statutes (1979), control the award made by the trial judge. Those factors include the parties’ standard of living, age, and physical condition, financial resources, contributions to the other’s career, duration of the marriage, and ability of the parties to find suitable employment. Although the parties apparently enjoyed a rather comfortable living standard during the marriage, and although appellant worked actively during the course of the marriage in appellee’s various truck-related businesses, she was at the time of final hearing 61 years of age and in questionable health; she had few financial resources; and, because of her physical condition, she had presented herself as a poor candidate for employment. We are not unmindful of the fact that the marriage of the parties was of a moderate duration, but taking into consideration the totality of the evidence and applying the standards of Section 61.08(2), Florida Statutes (1979), we have concluded that although the five years of marriage would tend to limit the amount of any award of alimony, the duration of a marriage in and of itself does not preclude the trial judge from making an award of permanent, periodic alimony.

The basic considerations for an award of alimony remain the need of one spouse for the funds and the ability of the other spouse to provide same. See Cana-karis v. Canakaris, 382 So.2d 1197 (Fla. 1980). We hold that appellant established her need, and by appellee’s failure to submit evidence to indicate that he was unable to pay alimony, it must be concluded that he possessed the ability to respond to such an award. Despite the age of appellant, if the evidence disclosed that she reasonably could be expected to become self-supporting, the award of rehabilitative alimony by the trial judge would be approved. Zaugg v. Zaugg, 357 So.2d 201 (Fla. 3d DCA 1978); Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977). In this case, however, the wife is in poor health and with no apparent means of support. There is no suggestion of how she might be rehabilitated to become self-supporting. Taking into consideration all of the foregoing, it is the holding of this court that the trial court abused its discretion in failing to award some modest, permanent, periodic alimony. See Gensemer v. Gen-semer, 383 So.2d 913 (Fla. 2d DCA 1980). We, therefore, remand with direction for the trial court to direct appellee to make a modest, permanent, periodic alimony payment to appellant. However, since the remedy available to the trial court to apportion assets and to provide support are interrelated and should not be viewed separately, we remand the entire case so the trial court will have an opportunity to consider the imposition of such other remedies as may be necessary to equitably conclude this dissolution proceeding. See Hoch v. Hoch, 380 So.2d 499 (Fla. 2d DCA 1980).

GRIMES, C. J., and BOARDMAN, J., concur.


text:
    Berta EQUES, Appellant, v. BEST KNIT TEXTILE CORPORATION and Hartford Insurance Group, Appellees.
    No. QQ-254.
    District Court of Appeal of Florida, First District.
    March 21, 1980.

      Richard A. Sicking of Kaplan, Sicking, Hessen, Sugerman, Rosenthal & Zientz, Miami, for appellant.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for appellees.
   PER CURIAM.

Appellant, Berta Eques, appeals a workers’ compensation order which awarded benefits for a 50% permanent partial disability of her right arm and a 16% permanent partial disability of her body as a whole.

The deputy found that appellant reached maximum medical improvement on an orthopedic basis on May 13, 1976, and on a neurological basis on April 8, 1977, that she was not entitled to temporary benefits subsequent to May 13, 1976. He entered the following findings: First, that she suffered a wage earning capacity loss equivalent to a 10% disability of the body as a whole, in excess of her permanent physical impairment. Second, that she suffered no psychiatric impairment causally related to her industrial accident. Third, that the employer/carrier, appellees, were not financially responsible for the treatments rendered by a psychiatrist, Dr. Borges, in that appellant had undertaken these treatments without authorization by the employer/carrier. Finally, the employer/carrier was found to be entitled to a credit or offset of compensation benefits from those benefits “presently being paid” to the appellant by the Social Security Administration.

Appellant presents these five points on appeal:

1. Whether the deputy erred in finding that the employer was entitled to a setoff of compensation benefits from benefits “presently being paid” by the Social Security Administration for total disability.
2. Whether the deputy erred in finding that the appellant does not have a psychiatric impairment causally related to her industrial accident.
3. Whether the deputy erred in denying the payment of the medical bill of Dr. Borges.
4. Whether the deputy erred in denying temporary disability between May 13, 1976, and April 8, 1977.
5. Whether the deputy erred in awarding the appellant a 50% permanent physical impairment of the arm, plus 6% impairment of the body, plus a 10% disability of the body for wage earning capacity loss.

Appellant, age 58, has a sixth grade education and varied job history in unskilled labor. While working in the appel-lee/employer’s garment factory on August 14, 1975, she caught her right arm in a defective knitting machine. Multiple injuries to her hand, arm, neck and shoulder resulted. Three operations for her arm were required, and appellant received authorized medical treatments from specialists in orthopedic surgery and neurosurgery. Without authorization from the employer/carrier, appellant also visited a psychiatrist, Dr. Borges, four times, beginning April 6, 1977. On May 13, 1977, the carrier wrote Dr. Borges to inform him his treatments were unauthorized. At the time of the hearing, appellant was receiving monthly social security benefits in the amount of $211.50, reflecting cost of living increases since the accident, instead of the initial base rate of $187.00.

Much conflicting evidence was presented at the hearing, including the orthopedic surgeon’s testimony that appellant had reached maximum medical improvement by May 13, 1976, with a 50% permanent partial impairment of the upper right extremity. Based on an April 8, 1977 examination, the neurosurgeon testified appellant had reached maximum medical improvement with a 6% permanent partial impairment on a neurological basis, manifested by cervical thoracic strain and headaches. The neurosurgeon also opined the appellant had not sustained any psychiatric impairment from her industrial accident.

We affirm those portions of the deputy’s order which find that appellant was not entitled to benefits in the form of psychiatric treatment and that the employer/carrier was not responsible for the psychiatric treatment expenses of Dr. Borges. Competent, substantial evidence supports the deputy’s finding that the appellant did not sustain any psychiatric impairment causally related to her industrial accident. It follows that the appellant could not show the psychiatric treatments provided by Dr. Borges were reasonable and necessary to excuse her failure to obtain prior authorization for his treatments. See Section 440.13, Florida Statutes (1975). Thus, the deputy correctly denied reimbursement to the appellant for Dr. Borges’ unauthorized psychiatric treatments. The order is affirmed as to Points 2 and 3.

As to Point 1, however, we reverse. The judge erred in including the cost-of-living increases to claimant’s social security benefits in computing the social security off-set. See A. C. Scott Construction and Paving Company, Inc. v. Miller, IRC Order 2-3906 (September 11, 1979); Great Atlantic & Pacific Tea Co. v. Wood, 380 So.2d 558 (Fla. 1st DCA 1980).

As to Point 4, we also reverse. The deputy erred in awarding permanent benefits based on a May 13, 1976 date of maximum medical improvement on an orthopedic basis. The deputy’s finding that appellant did not reach maximum medical improvement on a neurological basis until April 8, 1977, was a finding that she remained temporarily disabled well after May 13, 1976. Thus, permanent benefits were awarded prematurely. Murphy v. Walsh, IRC Order 2-3086 (January 4, 1972), cert. den. 351 So.2d 407 (Fla.1977).

Accordingly, we reverse those portions of the order awarding permanent partial benefits based on a May 13, 1976 date of maximum medical improvement, and remand the case so that the deputy may determine an accurate date of maximum medical improvement and award appropriate temporary and permanent benefits.

We also agree that the deputy erroneously calculated permanent partial disability benefits. On remand, the deputy should first determine the scheduled recovery; next, he should determine the separate anatomical injury to the body as a whole; third, he must determine the loss of wage earning capacity, taking into consideration all of the claimant’s injuries; fourth, he must determine which of the following determinations is greater: (1) either the loss of wage earning capacity, or (2) the total of the scheduled injuries, plus injury to the anatomical body as a whole, not resulting from the scheduled injury. Finally, the deputy must award benefits based upon whichever of those two determinations is greater. Section 440.15(3)(u), Florida Statutes (1975); Siver v. Proefke-Nielsen Construction Company, 8 FCR 174 (1974); Grao v. Fontainebleau Hotel, 8 FCR 354 (1974), cert. den. 300 So.2d 900 (Fla.1974).

Reversed in part and remanded, so that the deputy may enter an order consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


author: PER CURIAM. DOWNEY, JAMES C., Associate Judge,

text:
    COMBANK/WINTER PARK, a Florida Corporation, Appellant/Cross-Appellee, v. CHEBON CORPORATION, Chester Carson and Glenna Carson, his wife, Appellees/Cross-Appellants.
    No. 78-1325/NT4-77.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Rehearing Denied May 1, 1980.
    Edmund T. Woolfolk of D’Aiuto, Walker & Buckmaster, Orlando, for appellant/cross-appellee.
    James R. Cunningham of Moreland & Cunningham, P. A., Winter Park, for appel-lees/cross-appellants.
   PER CURIAM.

AFFIRMED.

LETTS, GAVIN K. and MOORE, JOHN H., II, Associate Judges, concur.

DOWNEY, JAMES C., Associate Judge, dissents with opinion.

DOWNEY, JAMES C., Associate Judge,

dissenting:

With some trepidation, I dissent. The resolution of this case has been-most difficult as evidenced by the length of time it has been pending here. The decision of my colleagues to affirm creates some apprehension on my part, yet I cahnot escape the conclusion that the circuit court should have decided that the appellees had no remedy available to them under their complaint.

Appellees began the present litigation when they filed a complaint which they characterize as one for “libel and slander and slander of title.” In material part the complaint alleged the following things. Appellant had filed a mortgage foreclosure suit against some of the appellees. During the course of the foreclosure litigation, appellant filed two other lawsuits against ap-pellee Chester Carson on two promissory notes. The court entered two summary judgments against Chester Carson totalling $150,000 in the litigation on the two notes. Shortly after the entry of those two judgments appellant, pursuant to a stipulation of the parties in the mortgage foreclosure suit, acquired title to the mortgaged realty and otherwise received all of the consideration appellant was entitled to receive under the stipulation. Appellant caused the summary judgments against Chester Carson to be recorded in the public records of Orange County and refused to satisfy them, although the stipulation provided that appellant would not enforce those judgments. Appellant’s refusal to satisfy the judgments (a) was wrongful, willful, and malicious, and done with the intention of preventing the appellees from procuring credit and continuing their trade as building contractors; and (b) constituted libel and slander against appellees in that the presence of the judgments on the public records amounted to a publication to the world that appellees owed a debt and refused to pay it, thereby damaging appellees’ ability to obtain credit and precluding them from carrying on their trade. For the foregoing reasons, appellees were entitled to recover compensatory and punitive' damages from appellant. Thereafter appellant filed an answer denying that appellant had engaged in any wrongful conduct. On April 26,1978, a non jury trial on the foregoing pleadings began. The evidence at the trial reflected that appellee, Chester Carson, is a builder and developer. In order to finance one of his projects, Chebon Corporation, a closely held Florida Corporation owned by Chester and Glenna Carson, borrowed over one million dollars from appellant and gave appellant a promissory note secured by a mortgage on certain realty in Orange County. As additional security for the loan to Chebon, Chester Carson pledged a $260,000 certificate of deposit.

Chester Carson also obtained two personal loans totaling $150,000. He also pledged the $260,000 certificate of deposit. Eventually, appellees’ obligations to appellant fell into default. Appellant filed one suit to foreclose its mortgage on the Chebon Corporation realty and two suits against Chester Carson on the two individual promissory notes for the $150,000. Appellant applied the $260,000 certificate of deposit against the Chebon Corporation mortgage debt, thus reducing the amount thereof. Appellant also obtained two judgments against Chester Carson on the individual notes. These judgments, dated May 5, 1975, and May 7, 1975, were recorded in the public records of Orange County.

On or about May 9, 1975, the appellant and appellee entered into a stipulation in the mortgage foreclosure suit wherein ap-pellees agreed, among other things, to withdraw their defenses and counterclaim in the foreclosure suit and allow appellant to proceed ex parte, and appellees give appellant a general release for any existing claims appellees had against appellant. In turn appellant agreed not to seek any deficiency judgment in the foreclosure suit and agreed not to enforce the judgments it obtained on the individual notes. In that regard the stipulation provided:

“1. Chebon Corporation, Chester Carson and Glenna P. Carson, his wife, hereby withdraw all affirmative defenses and/or counterclaims as filed in this cause or as filed in any other legal action now pending in the Circuit Court of Orange County, Florida against Com-Bank/Winter Park.
2.Chebon Corporation, Chester Carson and Glenna P. Carson, hereby fully release and exhonorate (sic) Com-Bank/Winter Park from any and all actions, causes of actions, claims, demands liability which may have accrued to Che-bon Corporation, Chester Carson and Glenna P. Carson by virtue of all past action, nonaction, misfeasance and/or nonfeasance of the said ComBank/Winter Park up to the time of the execution of this Stipulation.
3. ComBank/Winter Park agrees that it will not in this action seek to obtain any deficiency judgment against the Defendants, Chebon Corporation, Chester Carson and Glenna P. Carson.
4. That ComBank/Winter Park will not seek to collect and enforce by execution or otherwise, any judgment or judgments which the said ComBank/Winter Park may obtain in the following legal actions:
A) IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA. CIVIL DIVISION FILE NO. 75-2377
COMBANK/WINTER PARK, a Florida banking corporation, Plaintiff, vs. CHESTER CARSON, Defendant.
B) IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA. CIVIL ACTION NO. 75-2381
COMBANK/WINTER PARK, a Florida banking corporation, Plaintiff, vs. CHESTER CARSON, Defendant.
5. Should ComBank/Winter Park fail to acquire the fee simple title to the mortgaged premises at the foreclosure sale, then and in such event the prohibition against the collection and enforcement of the judgments as referred to in the preceding paragraph of this stipulation shall be null and void and the Plaintiff may thereafter enforce such judgments in any manner allowed by law.”

Shortly after the date of the stipulation, appellant recorded the judgments on the individual notes in the public records of Seminole County. On May 13, 1975, the court entered a final judgment of foreclosure in favor of appellant, which eventually bought the real property at public sale. Thereafter appellees requested appellant to satisfy the two judgments based upon the individual notes, but appellant refused. Appellees adduced testimony that as a result of those judgments being of record their credit was damaged and they could not obtain financing on their construction projects causing them substantial damages. At the end of the evidence, the court entered judgment for appellees for $22,500 compensatory and punitive damages, plus costs.

On appeal the Bank contends that the judgment is erroneous because the stipulation of the parties to the mortgage foreclosure action required the appellant Bank to refrain from trying “to collect and enforce by execution or otherwise”, the judgments referred to in the stipulation; the stipulation did not require the Bank to satisfy the judgments as suggested by appellees. In support of its contention appellant points to the testimony of the two lawyers who represented the parties when the stipulation was prepared and signed. The testimony of those lawyers indicates that there had been bad feeling between the parties at the time of the stipulation so that no quarter was given. It is clear appellant never agreed to satisfy the judgments.

The argument section of appellees’ brief commenced with a statement which appears to contain the thrust of appellees’ argument:

Placing judgments on the Public Record and leaving those judgments on the Public Records even though they had been fully secured by Certificates of Deposit and the bank had taken those deposits, after notice of the actual damages accruing to the Plaintiff and demands that they be released, is a statement open to the public on the public records that the Plaintiff has failed to pay his debts and that he owes the Defendant money.

It is clear that when appellant obtained and recorded the two judgments on Chester Carson’s personal notes, they were valid and existing judgments. In addition, at the time the judgments were rendered and recorded, the appellant had already utilized the $260,000 certificate of deposit to pay part of the mortgage debt of Chebon Corporation. Appellee complains about the use of the certificate to help satisfy the mortgage obligation, but the hypothecation agreement signed by Chester Carson, the owner of the certificate, clearly authorized appellant to apply the certificate to the mortgage debt.

In considering the totality of the evidence it may appear that what the parties really intended was to have the judgment satisfied of record if the appellant applied the certificate of deposit to the debt created by Carson’s individual notes and if the appellant was the purchaser of the mortgage realty. In the foreclosure proceeding, however, that is not what the appellant agreed to do in the stipulation. Both of the lawyers who then represented the adverse parties and prepared the stipulation testified that appellee not only did not agree to satisfy the judgments but that appellee did not intend to do so. In such a setting there may be some cause of action available to appellees to have the judgments in question remanded from the public records, but I remain convinced that an action for libel and slander or slander of title does not lie. Thus, I would reverse the judgment appealed from.

      . Carson and Chebon’s attorney testified:
      "Q. . . you knew that the satisfaction of judgments was not a part of that agreement, isn’t that correct?
      A. Yes, sir, I did know that the satisfaction of the judgments was not mentioned.
      It was my feeling, in connection with the negotiation on that agreement that we got the best deal we could get from the bank at that time.
      Q. That was the best deal?
      A. Under the circumstances.
      Q. The best deal you could get under the circumstances was to get them to agree not to attempt to collect and not to obtain the deficiency?
      A. Yes, because it was a very adversarial situation between the bank, I think. There was (sic) some bad feelings and so forth." (Emphasis added) (T. 364-365.)
      The Bank’s attorney described the proceedings as follows:
      “It was my intention to not concede anything, as is the case in most adversary proceedings, unless negotiated to by counsel who represented the Carsons.

        These points were carefully negotiated pri- or to my drañing the stipulation.

      But everyone fully intended at that time that those two judgments, three judgments, would go on record and remain there. . . ”
      (Emphasis added.) (T. 51.)


author: DANAHY, Judge.

text:
    Caroline Marie HALL, Appellant, v. STATE of Florida, Appellee. James Larry HALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-801, 79-802.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.
    Rehearing Denied April April 25, 1980.
    Jack 0. Johnson, Public Defender, and John A. Naser, Asst. Public Defender, Bar-tow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and James S.' Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellants appeal from their convictions of possession of marijuana in excess of five grams with intent to sell in violation of Section 893.13(l)(a), Florida Statutes (1977). Appellants contend that the trial court erred in denying their motion for judgment of acquittal made at the close of the state’s case and renewed at. the close of all the evidence because the state failed to show that they had any knowledge of the presence of the contraband. We agree and reverse.

At trial the state presented the following testimony: Thurlin Runkle, an investigator for the Sheriff’s Department, testified about the execution of a search warrant at appellants’ one room residence, said that he found certain items, later proved to contain marijuana, out of view under appellants’ bed in the room; and that at the time of the search although appellants’ son, Roger, slept in an adjacent building, he resided at the residence with appellants. Sergeant Riley testified that he accompanied Runkle in the search, and that he had seen the marijuana seized from under the bed. Deputy McGinn testified as to the chain of custody of the items seized. Dr. Davidson, a forensic chemist with the Sheriff’s Department, testified that the substance seized tested positive for marijuana and that it exceeded five grams after subtracting an estimated allowance for the stems and seeds present. The state then rested. Appellants moved for a judgment of acquittal on the ground that the state had failed to present any direct evidence that they knew of the presence of the contraband in the residence. The motion was denied.

“Possession,” as used in Section 893.13(1), Florida Statutes (1977), where not in the physical possession of the defendant, may be proved by showing constructive possession. Constructive possession exists when the defendant knows of the presence of the controlled substance on his premises and has the ability to maintain control over it. Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975). Where the possession of the premises on which the controlled substance is found is not in the exclusive, but only in the joint possession of the accused, knowledge of the presence of the substance on the premises and the accused’s ability to maintain control over it must be established by proof, and may not be inferred. Smith v. State, 279 So.2d 27 (Fla.1973); Clark v. State, 359 So.2d 458. (Fla. 3d DCA 1978); Griffin v. State, 276 So.2d 191 (Fla. 4th DCA 1973); Markman v. State, 210 So.2d 486 (Fla. 3d DCA 1968); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

In the case at bar, the appellants’ conviction was based on constructive possession because appellants were not in physical possession of the marijuana. The state presented evidence that the residence was in the joint possession of, and there was free access to it by, Caroline, James and Roger Hall and that the marijuana was found out of plain view under the appellants’ bed. Since the premises were not in the exclusive possession of appellants but only in their joint possession, the state was required to present proof that appellants knew of the presence of the marijuana and were able to maintain control over it. The state failed to do this.

We therefore hold that the state failed to make a prima facie case of possession (with intent to sell), and that the trial court erred in denying appellants’ motion for a judgment of acquittal.

Accordingly, the judgments are reversed, the sentences are vacated, and the case is remanded with instructions to discharge the defendants.

BOARDMAN, A. C. J., and ULMER, RAY E., Jr., Associate Judge, concur.


author: BOOTH, Judge.

text:
    Gary M. PICCIRILLO, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. NN-92.
    District Court of Appeal of Florida, First District.
    March 28, 1980.

      Gary M. Piccirillo, pro se.
    No appearance for appellee.
   BOOTH, Judge.

This is an appeal from summary denial of petition for writ of habeas corpus alleging violation of due process in a prison disciplinary proceeding.

Appellant was charged with participating in riots and inciting riotous acts based on his alleged participation in a prisoner “strike” by the inmates at Marion Correctional Institute on October 11, 1978. He was transferred to the institution at Lake Butler and placed in administrative confinement for up to 30 days. On October 21, 1978, he was served with notice of the infractions. Hearing was held before a three-man disciplinary committee on October 23, 1978. Appellant’s request for two witnesses was denied. He was found guilty and sentenced to 30 days punitive confinement and a loss of 180 days gain time. An administrative appeal, apparently under Rule 33-3.08(14), Rules of The Department of Corrections, was filed November 24, 1978, and subsequently denied. This appeal, however, is not from the denial of administrative relief, but from the denial of the petition for writ of habeas corpus, alleging infringement of due process. Of the five grounds asserted as error, three merit discussion.

First, petitioner contends that the disciplinary committee which heard his case was not impartial, in that one of the members of the committee was a correctional officer who had been listed on another inmate’s disciplinary report as a witness to the incident giving rise to the instant charges, and who had been a witness at that other inmate’s hearing. The Department’s Rule 33-3.08(1), F.A.C., provides:

“Any member of the disciplinary team should be disqualified as a member if he has participated as an investigating officer, was a witness, initiated the charge, or is a person designated to review the decision of the disciplinary committee.”

The above-quoted rule largely follows the case law requirement that the hearing in a prison disciplinary proceeding be before a neutral and detached hearing committee. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Myers v. Askew, 338 So.2d 1128 (Fla. 4th DCA 1976). In the Myers case, supra, the court held (338 So.2d at 1130):

“Measured against Wolff, supra, we conclude that this regulation [former § 10B-12.08(1), now Rule 33-3.08(1), above quoted] for the impaneling of disciplinary committees meets the requirements of due process. The fact that a disciplinary committee is composed of prison officials, in and of itself does not mean that an accused inmate is deprived of his right to have accurate and fair fact finding determination prior to imposition of sanctions. Provided that no member of the disciplinary team has participated or will participate in the case as an investigating or reviewing officer, or is a witness or has personal knowledge of material facts related to the involvement of the accused, or is otherwise personally interested in the outcome of the disciplinary proceeding, a hearing team comprised of prison officials will satisfy the due process requirement of a ‘neutral and detached hearing body.’ ” (citation omitted)

Here, allegations of the petition were that the committee member witnessed the riot and that he had testified against another inmate concerning that inmate’s involvement in the incident. The petition does not assert facts showing that the officer was an investigating or reviewing officer, that he had personal knowledge of material facts related to the involvement of the accused, or was otherwise personally interested in the outcome of the proceeding. In the absence of creditable factual allegations, the charge,of lack of impartiality is conclusion-ary, and summary denial by the trial court was proper.

The second ground of the petition was that insufficient time was allowed for appellant to prepare for the hearing. He asserts that he was given written notice on October 21, and the hearing was held on October 23. The rules of the Department and the case law require that a prisoner be given at least 24-hours written notice of the charges. Rule 33-3.08(8), F.A.C.; Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974). This requirement was met in this case.

A third basis for the petition was the allegation that appellant should have been given opportunity to cross-examine his accuser and to call witnesses in his own behalf. In Wolff v. McDonnell, supra, the United States Supreme Court held:

“[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action . Viewed in this light it is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees and probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison .
“In striking the balance that Due Process Clause demands, however, we think the major consideration militating against adopting the full range of procedures suggested by Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484] for alleged parole violators is the very different stake the State has in the structure and content of the prison disciplinary hearing . . . Prison disciplinary proceedings . . . take place in a' closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so . The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake, to say nothing of the impact of disciplinary confrontations and the resulting escalation of personal antagonism on the important aims of the correctional process . Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution.
“Confrontation and cross-examination present greater hazards to institutional interest. If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls . . .”

Following the foregoing holding of the United States Supreme Court is the Department’s Rule 33-3.08(13)(i), which allows an inmate to request material witnesses. In Roberts v. Brierton, 368 So.2d 117,118 (Fla. 1st DCA 1979), this court reversed the summary denial of a petition for writ of habeas corpus which had alleged denial of right to call witnesses at a disciplinary hearing. In so doing, however, this court ruled (368 So.2d at 118):

“We are not ruling that the trial court must issue a show cause order or grant an evidentiary hearing every time an inmate makes a conclusionary allegation that he was denied the opportunity to call witnesses in his own behalf. The facts of this case are compelling. This petition makes detailed factual allegations.”

In the instant case, the petition does not specify the evidence sought to be elicited or its pertinence to petitioner’s guilt or mitigating circumstances affecting the degree of his punishment. Procedural rights of prisoners in disciplinary proceedings are not an end in themselves, but are a means of achieving a fair and just determination of the question of whether the inmate in fact committed the infraction charged and, if so, whether mitigating circumstances exist.

A proceeding in habeas corpus is civil rather than criminal in nature, and the petition “must make out a prima facie case.” Flicker v. Duff, 290 So.2d 129, 130 (Fla. 1st DCA 1974). Technical rules of pleading do not apply to petitions for habe-as corpus, but the law requires that substance be supplied by way of sworn factual allegations or evidentiary attachments to the petition.

Accordingly, the judgment below is AFFIRMED.

McCORD and SMITH, L., JJ., concur.

      . Rule 33-3.08(13)0), F.A.C.:
      “(i) The inmate or the Disciplinary Team may request material witnesses. The chairman will call those witnesses (staff or inmates) who are available and who are determined to be necessary for an appreciation of the circumstances. Repetitive witnesses will not be called. Unavailable witnesses may submit written statements. Witnesses will not be called if doing so would create a risk or reprisal or would undermine authority. The inmate witness must be willing to testify

      . Swarez v. Wainwright, 363 So.2d 833 (Fla. 1st DCA 1978):
      “Appellant has not denied the assault, but contends that his procedural rights were violated by appellee’s failure to call all of the witnesses he requested and the failure to furnish copies of the report of investigation or incident report as well as written reports of the evidence against him . . . [We] find that respondent’s failure to call all witnesses requested does not violate petitioner’s basic rights or the Florida Administrative Code. Appellant was furnished with a copy of the charges against him in advance of the hearing and was informed of the information contained in the reports. In view of the possible risk of reprisal against inmates and officers who are witnesses to the disturbance, further disclosure was not required. Finally, we note that appellant’s attack on the impartiality of the panel is patently devoid of rfter-it.”
      See, Willis v. Ciccone, 506 F.2d 1011, 1015, 1016, 1019 (C.C.A. 8th 1974):
      “We observed initially that while prisoners are entitled to a plenary evidentiary hearing when they state a claim which merits it, only certain claims merit such a hearing. Before a hearing is required, the petition must allege a harm resulting from the deprivation of some basic federal constitutional right. Furthermore, conclusory pleading is not sufficient. Facts must be stated which, if true, would justify relief . . . Habeas petitions cannot seek de novo review of the facts involved in a disciplinary proceeding . The only issue which should concern a federal court in such instance is whether the prisoner has been aggrieved by a denial of a fundamental constitutional right. A hearing is not required if one is not necessary to a determination on that issue. Often one is not. Habeas corpus is designed to provide a prompt and efficacious remedy ... In conclusion we therefore hold that prisoner petitions which seek a writ of habeas corpus and relief from prison conditions must allege (1) a substantial infringement of a constitutional right, and (2) a factual statement, which if true would entitle the prisoner to relief, and (3) exhaustion of prison grievance procedures . . . Where the issue is one of due process in a disciplinary action, the District Court should concern itself with the question of whether procedural due process has been afforded and whether there exists a factual basis for the discipline invoked. Generally this evidence should be received in the form of documentary proof without the necessity of an evidentiary hearing . .” (e. s.)

      . Wiggins v. State, 191 So.2d 30, 34 (Ala.1966).

      . Crane v. Hayes, 253 So.2d 435, 442 (Fla. 1971).

      . Florida Statutes, § 79.01, is, in pertinent part, as follows:
      “Whenever any person detained in custody applies ... to any circuit judge for a writ of habeas corpus and shows by affidavit or evidence probable cause to believe that he is detained without lawful authority, the court . . .to whom such application is made shall grant the writ forthwith, against the person in whose custody the applicant is detained and returnable immediately before any of the courts as the writ directs.”


text:
    BAY COUNTY SCHOOL BOARD, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Association of Bay County Educators, FTP-NEA, Appellees.
    No. PP-330.
    District Court of Appeal of Florida, First District.
    March 28, 1980.

      Robert L. Norton and Donald H. Wilson, Jr. of Hogg, Allen, Ryce, Norton & Blue, P. A., Coral Gables, for appellant.
    Richard H. Frank and Mark F. Kelly, Law Offices of Frank, Chamblee & Kelly, P. A., Tampa, for appellees.
   PER CURIAM.

Bay County School Board [School Board] appeals an order of the Florida Public Employees Relations Commission [PERC] finding it guilty of an unfair labor practice for failure to provide budget work sheets to the Association of Bay County Educators [ABCE] following their written request. The issue to be decided .is whether these work sheets are exempted from disclosure under the Public Records Law, Chapter 119, Florida Statutes, by virtue of Section 447.-605(3), Florida Statutes (1977). We hold they are not.

Section 119.01, Florida Statutes (1977) declares that “all state, county, and municipal records shall at all times be open for a personal inspection by any person.” Public records are defined as “. . . all documents, papers, letters, ... or other material, regardless of physical form oí characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” § 119.011(1), Fla.Stat. (1977). School Board does not challenge PERC’s conclusion that the budget work sheets constituted “public records” within Section 119.011(1), Florida Statutes (1977). Rather, School Board submits that the work sheets are expressly exempted by general law, viz, Section 447.605(3), Florida Statutes (1977), which provides:

(3) All work products developed by the public employer in preparation for negotiations, and during negotiations, shall be exempt from Chapter 119.

In City of Gainesville v. State ex rel. International Association of Fire Fighters, Local No. 2157, 298 So.2d 478 (Fla. 1st DCA 1974), this court indicated that budgetary proposals prepared in the normal and required course of municipal business would not be exempt under Section 447.023(3), Ch. 74-100, § 3, Laws of Fla. [renumbered as Section 447.605(3)], since the statute exempts only materials developed by the public employer in preparation for or during labor negotiations. In In re: The Petition for Declaratory Statement of United Teachers of Dade, 4 FPER ¶4250 (1978), PERC discussed the exemption created by Section 447.605(3). PERC noted:

Public employers make use of many public records in preparation for and during negotiations, but unless those records are ‘developed by the public employer in preparation for negotiations, and during negotiations,’ they are not exempt under Section 447.605(3). . . . Records which are prepared for other purposes do not, as a result of being used in negotiations, come within the exemption of Section 447.605(3).

There is competent, substantial evidence to support PERC’s finding that the work sheets were prepared to assist the School Board in developing its 1978-79 budget. The fact that the work sheets were subsequently used to assist the School Board in collective bargaining negotiations with ABCE did not render the documents exempt from the Public Records Act under Section 447.605(3). Accordingly, the order appealed is affirmed.

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.

      . Even if this issue were properly before us, we agree with PERC’s conclusion since the work sheets were “material[s] prepared in connection with official agency business which [are] intended to perpetuate, communicate, or formalize knowledge of some type,” were intended as final evidence of the knowledge to be recorded, and were not mere precursors of governmental records. Shevin v. Byron Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633 (Fla. 1980).


author: PER CURIAM. BOOTH, Judge,

text:
    NATIONAL BRANDS, INC. and Michigan Mutual Insurance Co., Appellants, v. David WILLIS, Appellee.
    No. QQ-354.
    District Court of Appeal of Florida, First District.
    March 28, 1980.
    Donna C. Wyatt, of Cooper & Rissman, Orlando, for appellants.
    H. Guy Smith, Lakeland, for appellee.
   PER CURIAM.

Affirmed.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla.1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Frank JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. NN-168.
    District Court of Appeal of Florida, First District.
    March 28, 1980.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   ORDER ON MOTION FOR REHEARING

PER CURIAM.

Appellant asserts in his motion for rehearing or clarification that this court evidently overlooked Brown v. State, 376 So.2d 382 (Fla.1979), in which the Supreme Court of Florida ruled that a conditional nolo contendere plea (State v. Ashby, 245 So.2d 225 (Fla. 1971)), is permissible only if the legal issue to be appealed is dispositive of the case, and that “as a matter of law a confession may not be considered dispositive of the case” (Brown, at 385) for purposes of an Ashby nolo plea.

The record presented to this court reveals a stipulation filed in the trial court in which both the State and the defense agreed that the State could not proceed with the prosecution of this case without the benefit of the confession as evidence. This court did not overlook Brown v. State, supra, but did consider it, and determined that the “dis-positive effect” of a confession, as a matter of law, must be viewed in accordance with that decision. However, we do not consider that decision as precluding a stipulation, by the State and the defendant, such as we have in the record here, in which both sides agree that the State has no case and would be unable to proceed with the prosecution without the confession. Under these circumstances we concluded that the ruling on the admissibility of a confession would be “dispositive of the appeal”. Having so considered it, we reviewed the appeal on the merits, and affirmed the ruling of the trial court.

Accordingly, the motion for rehearing and motion for rehearing en banc are denied.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.