author: ORFINGER, Judge. COWART, Judge,

text:
    Ulysses JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-230.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

This appeal is from a judgment of conviction of the crime of burglary of a structure. We affirm.

Appellant contends that the information charging him with burglary was deficient because it did not allege that his entry into the structure was without the consent of the person alleged to be the owner or custodian thereof. In Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), we held that under the burglary statute, section 810.02(1), Florida Statutes (1979), non-consensual entry into the premises was an essential element of the crime of burglary, and failure to allege the element of non-consent made the information susceptible to dismissal upon proper motion. Here, however, there was no motion to dismiss the information filed in the trial court, and the point is raised for the first time on appeal.

There is a difference between an information that completely fails to charge a crime and one where the charging allegations are incomplete or imprecise. The former is fundamentally defective. State v. Dye, 346 So.2d 538 (Fla.1977). However, where the information is merely imperfect or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot be raised for the first time on appeal. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), [1982 FLW 820]; Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981). The test to determine if an information is fatally defective is whether there is a total omission of an essential element of the crime, or whether the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to the substantial danger of a new prosecution for the same offense. State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980). If the information recites the appropriate statute alleged to be violated, and if the statute clearly includes the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defense. Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972), cert. denied, 271 So.2d 142 (Fla.1972). See also, United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir. 1976).

Appellant further contends that there is an absence of proof that the structure, a gasoline station, was entered without consent of the owner or custodian. The information alleged that the structure was “the property of Paul Loomis as owner or custodian thereof.” Evidence was presented at trial that Paul Loomis was in charge of the station on the night of the entry, although his brother was the actual owner of the property, and that Paul Loomis had not given appellant consent to break a window and thereby enter the station at night when it was closed. The allegations and proof were sufficient to charge ownership for the purpose of proving burglary. Ownership, for this purpose, means any possession which is rightful against the burglar and is satisfied by proof of special or temporary ownership, possession or control. In Interest of M. E., 370 So.2d 795 (Fla.1979); Patterson v. State, 391 So.2d 344 (Fla. 5th DCA 1980); Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977).

We have considered appellant’s final point and find it to be without merit.

The judgment of conviction is

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

In Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), the majority opted to hold that non-consent to the entry was an element of statutory burglary rather than holding, as urged by the dissent, that consent should be considered an affirmative defense to be asserted by the accused. A necessary result of the majority holding in Hicks is that non-consent must be alleged and proved by the State, just as any other element of the offense of statutory burglary. The dissent in Hicks pointed out the monumental practical differences between the State having and carrying a high burden of proof (beyond a reasonable doubt) as to a negative fact (that all who could give consent to entry did not do so) and the defense being able to merely create a reasonable doubt by asserting consent from a particular specific source.

This case is indistinguishable from Hicks and illustrates the problems with that holding. Hicks’ conviction was reversed, but here Jones’ conviction is affirmed.

There is a legal principle making a distinction between a charging document that wholly fails to allege an essential element and a charging document that does attempt to allege the essential element but does so imperfectly. The charging document which wholly fails to allege an essential element is fundamentally defective because it fails to allege a crime. The charging document which imperfectly alleges an essential element, while subject to a motion to dismiss for technical insufficiency, may be constitutionally sufficient to apprise the accused that the subject matter of the essential but incompletely alleged element is part of the accusation against him and a factual issue concerning which he must be prepared to defend at trial. Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981), Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981). This sound principle of law has been used twice recently by this court. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982) [1982 FLW 820], upheld an information that incompletely alleged the essential element of mental intent in a theft case where the allegation was “within intent to deprive” rather than the correct “with intent to permanently deprive.” In Green v. State, 414 So.2d 1171, No. 81-1013 (Fla. 5th DCA June 9, 1982) [1982 FLW 1241], a robbery case, the information alleged that Green did rob and steal by force and it was held that the word “steal” was an incomplete allegation of all of the elements of larceny and included the mental intent to permanently deprive. However, this principle of law does not apply in this case because the information here, as in Hicks, makes no effort to allege an element of non-consent separate and distinct from the usual allegation that the burglarized premises was owned or occupied by someone who had a right of exclusive possession as against the defendant. The majority cites Bass v. State, 263 So.2d 611 (Fla. 4th DCA), cert. denied, 271 So.2d 142 (Fla.1972), as in effect holding that every information that refers to a criminal law statutory section number is sufficient if the statute referred to includes a reference to some omitted element of the crime charged. Constitutional due process requires that all criminal charging documents must allege in clear, simple and positive language all the essential ingredients of the offense with which the accused is charged with such definiteness and reasonable certainty as to fully apprise the accused of the nature and cause of the accusation against him and enable him to prepare to meet it at his trial. See, e.g., Robinson v. State, 69 Fla. 521, 68 So. 649 (Fla.1915). If Bass v. State holds that mere reference in an information to a criminal statute number is sufficient to meet this constitutional duty, then that case should not be followed. That proposal is especially erroneous here where the information refers only to Florida Statute 810.02 and that section has three subsections covering burglary, first degree burglary and second degree burglary under a variety of alternative factual circumstances. Bass v. State cites no case authority and contains no legal analysis or reasoning relating to the basic legal problems and principles involved; frankly, it appears to have been a far out appellate effort to sustain a very poorly alleged criminal charge. Such a case is bad precedent and, when extended, makes bad law.

The second problem here is as to proof. The information alleged that the burgled service station was the property of Paul Loomis as owner and custodian thereof. At trial Paul Loomis testified that he did not own the service station, that it was owned by his brother Vader Loomis, that on the date in question about seven people worked at the place of business and that the principal persons in charge were Vader Loomis, Jim Gavelic and Paul Loomis. He stated that the service station offered twenty-four hour emergency tow service and that responsibility for late night calls was alternated. On the night in question when the police ascertained that a burglary was in progress he, Paul Loomis, was called because he was on the directory call service for that night. There was no testimony that Vader Loomis, Jim Gavelic or any others that could have given consent to the entry had not done so. If, as necessary under Hicks, the State must prove absence of consent it must prove the lack of consent from everyone that could give consent. Here, also obviously, since Vader Loomis and Jim Gavelic could have given consent (as perhaps could others), the State’s failure to prove that they did not give consent was a substantial failure of proof in the State’s case that should result in either a judgment of acquittal or a reversal on appeal.

I cannot agree that the information in this case merely incompletely alleges the element of non-consent held in Hicks to be an essential element of statutory burglary to which the principle discussed in Gray, Kane, Brewer and Green can be legitimately applied. Also, when the evidence in a criminal burglary case indicates that two or more persons have authority to give consent to enter a building, I cannot agree that a non-consensual entry can be established by evidence only that one of such persons did not give consent.

The Supreme Court of Florida has taken certiorari jurisdiction to review Hicks, but at this time it is binding precedent from this court. Therefore, if the majority would be true to the consequences of the holding in Hicks and reverse this case, I would concur in that result. On the other hand, I would also concur in an opinion receding from Hicks. I cannot agree to the misapplication of good principles of law in order to avoid the consequences of the Hicks holding. Therefore, I dissent.

      . In Hicks, defendant had moved to dismiss the information on the specific ground that this necessary allegation was not contained in the information and the motion had been denied. 407 So.2d at 252.

      . State v. Hicks, No. 61,557 (Fla. review granted May 7, 1982).


source: Caselaw Access Project

author: DAUKSCH, Chief Judge. COWART, Judge,

license: Public Domain

text:
    John Everett OWENS, Sr., Appellant, v. Jewell D. OWENS, Appellee.
    No. 81-940.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.

      John W. Rodgers of Rodgers, Wagner & Satava, Orlando, for appellant.
    James N. Powers, P. A., Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order in a marriage dissolution case which modified a final judgment and increased the father’s contribution toward the support of his children. We find no error in any respect and affirm the order but we deem it necessary to establish a point of law which has not been decided by this court and is of some confusion in the state. Because the point of law is not well settled and we deem it to be of great public importance we certify the following question:

UNDER WHAT CIRCUMSTANCES, IF ANY, DOES A COURT HAVE JURISDICTION AND AUTHORITY TO ORDER A PARENT OF A PERSON OVER THE AGE OF EIGHTEEN TO PAY CHILD SUPPORT PAYMENTS?

The father in this case was ordered to contribute Thirty Dollars a week toward the support of his eighteen year old son until the son’s graduation from high school in June, 1982. The evidence shows the son had to repeat his third grade of elementary school and thus was one year behind in finishing high school. Evidently he is healthy, intelligent, employed part-time and dependent upon his parents for support during this final year of high school. There is ample evidence the father is financially capable, although unwilling, to provide the needed financial assistance for this son and his other children.

Before the change in the law regarding the age of majority of a person in Florida this problem would hardly have arisen because it is rare that a healthy, intelligent not otherwise dependent child would not complete his high school education by age 21. The pertinent statute is section 743.07, Florida Statutes (1981):

Rights, privileges, and obligations of persons 18 years of age or older.
(1)The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the State Constitution immediately preceding the effective date of this section and except as otherwise provided in the Beverage Law.
(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

This statute is applicable to this case in two ways. First, it says the court can require support for a dependent child over eighteen. Second, it says it does not affect rights and obligations existing before July 1, 1973. For at least one statutory definition of “dependent child” see section 409.-2554(2), Florida Statutes (1982), which says:

(2) “Dependent child” means any person under the age of 18, or under the age of 21 and still in school, who has been deprived of parental support or care by reason of death, continued absence from the home, or physical or mental incapacity of a parent.

(Emphasis supplied).

As to the first point, we have determined the child in this case to be dependent and entitled to support because he cannot fully support himself and properly attend to his high school studies at the same time and because we deem it essential that a person who is able to do so, complete his high school education. We quite agree with the dicta in Finn v. Finn, 312 So.2d 726 (Fla. 1975), where our Supreme Court, speaking through Circuit Judge Ben Willis, said:

In this age of sophisticated technology and economic complexity with the necessity of development of special skills to qualify for pursuit of a trade, profession or to obtain employment, a person over 18 and less than 21 may indeed be dependent on the help of others to obtain what education and training is needed to be competitive in the economic system in which he must make his way. He and society have a right to expect his parents to meet that need to the reasonable extent of their ability to do so, and nothing in Chapter 73-21 says otherwise.

As to the second point, the final judgment of dissolution, which was modified by the order appealed here, was rendered in 1972. Thus the rights and obligations concerning support first came into an adjudicated existence before July 1, 1973. In that final judgment it was held that the support would continue until each child reaches eighteen, marries, dies, becomes self-supporting or enters the armed forces, whichever first occurs. It also held, somewhat ambiguously, that the support would continue “during the minority of the children or until they are emancipated or self-supporting.” We say ambiguously because the judgment on the one hand terminates the support at age eighteen and on the other hand orders its continuance until emancipation, which at that time was twenty-one. Parenthetically, it could be argued that since the child became eighteen when the age of emancipation is eighteen that there is no longer any ambiguity. Be that as it may, we agree with the dicta in Finn and the dicta in Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980), both of which say dependency can be established by proof that a child is necessarily and diligently pursuing his education and thus unable to support himself completely. We recognize this decision is in conflict with Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977) which holds, at least implicitly, that upon emancipation a child cannot be legally entitled to court-ordered parental support unless he is “disabled by physical or mental incompetency.”

Although we have certified a question of great public importance and deemed this case to be in conflict with another appellate case our Supreme Court will not exercise its discretion in considering this matter unless petitioned.

AFFIRMED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I must dissent. I do not find “the child in this case to be dependent.” This young adult is able-bodied and employable as a matter of fact and independent as a matter of law. Since the amendment of section 1.01(14), Florida Statutes, in 1973, the obligation of parents in Florida to support children over 18 years of age is the same as the obligation of parents prior to 1973 to support children over 21 years of age. Prior to that amendment, the concept of a parental duty to support a dependent adult child referred only to an adult child who was dependent because of some physical or mental incapacity and was therefore unable to sustain himself. See, e.g., Perla v. Perla, 58 So.2d 689 (Fla.1952); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963). See generally Annot., 1 A.L.R.2d 910 (1948) (Parent’s Obligation to Support Adult Child). Such dependency is unrelated to the desirability of everyone attaining as much formal education as possible, whether high school or college. Lowering the age of majority to eighteen did not legislatively overrule this case law; since the amendment, a child not physically or mentally incapacitated from earning a living ceases to be a dependent of his parents when he arrives at 18 years of age. The majority’s opinion is laudably concerned with the importance of education. However, the legislatively expressed public policy of this state is to compel school attendance of a child only to the date he attains 16 years of age. § 232.01(l)(c), Fla. Stat. (1981). After that, it is up to the parents; the decision is theirs and not that of government. Certainly there is no authority for a healthy, able-bodied child of undivorced parents to demand and force his parents (through suit if necessary) to provide him with an education beyond age sixteen or any type of support beyond age eighteen. This court first deems it essential that an adult complete his high school education, then enforces such judicial notion against those parents who have been so unfortunate as to have their marriages dissolved. This holding not only encroaches on the legislative prerogatives to set the age of majority and self-sufficiency without regard to education at eighteen and to set the age of government mandated school attendance at sixteen, but denies such divorced parents their freedom to, or not to, provide financial help to their adult children who would endeavor to continue their formal education. It denies such divorced parents their constitutional right to equal treatment under law; that being the same right to voluntarily make such decisions concerning their adult children as other, undivorced parents have under law. I cannot agree with a rule of law that permits domestic relations judges to create and enforce special duties of support in favor of adult children against divorced parents which are not provided by general law equally applicable to all parents. Therefore, I prefer the reasoning of Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977), to the idealistic dicta of Finn v. Finn, 312 So.2d 726 (Fla.1975), although I am aware that the authority of the latter may overwhelm the principle of the former.

      . In an attempt to bolster their holding, the majority refers to the definition of “dependent child” in section 409.2554(2), Florida Statutes (1982). This definition from chapter 409 pertaining, as it does, to the government’s social and economic assistance programs for children and adults is entirely unrelated to the question before this court as to when a parent is responsible for support of his adult children. That definition is explicitly restricted to its use in that chapter and, when read out of context of the chapter it relates to, the definition could be argued to require a poor parent to support a wealthy, able-bodied, well employed, married adult child solely because the child is under 21 and desires to finish high school. Conversely, by the statute’s definition, a child under the age of 18 is not dependent if the parent responsible for support is not dead, absent from the home, or physically or mentally incapacitated; is such a child therefore not entitled to parental support? This definition but reflects the wisdom of our present welfare programs.

      . Notwithstanding the best intentions of both parents to see that a child, over sixteen, finishes his education, it must be recognized that, human nature being what it is, these intentions are easily frustrated by a child who desires otherwise.


author: DAUKSCH, Chief Judge.

text:
    Mohsen M. SALEH, Appellant, v. Cecil WATKINS, d/b/a Marion Fence, Appellee.
    No. 81-1266.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.

      Thomas D. Sawaya, Ocala, for appellant.
    Gregory E. Tucci of Berk & Tucci, P. A., Ocala, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a final judgment establishing a mechanic’s lien against the real property of the owner/appellant, Moh-sen M. Saleh. The lower court awarded the contractor/appellee, Cecil Watkins, d/b/a Marion Fence, the amount of the claim of the lien plus interest and costs.

The owner moved to dismiss the cause on the ground that the contractor failed to comply with the requirements of section 713.06(3)(d)l, Florida Statutes (1981). The trial court granted the owner’s motion to dismiss, but allowed the contractor leave to file an amended complaint. At the hearing on the motion to dismiss, the trial court was aware that the contractor had not yet filed the required affidavit under section 713.-06{3)(d)l, and that he intended to file the affidavit five days prior to filing his amended complaint which would allege service of the affidavit. The owner contends that the trial court erred in allowing the contractor leave to file an amended complaint because the contractor’s noncompliance with section 713.06(3)(d)l rendered such an amendment futile. We agree.

Section 713.06{3)(d)l, Florida Statutes (1981) provides:

(3) The owner may make proper payments on the direct contract as to lienors under this section, in the following manner:

(d) When the final payment under a direct contract becomes due the contractor:

1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not. (emphasis added).

This section must be strictly construed and strict compliance with the mechanic’s lien law is an indispensable prerequisite to seeking affirmative relief thereunder. Section 713.37, Florida Statutes (1981); Falovitch v. Gunn & Gunn Construction Company, 348 So.2d 560 (Fla. 3d DCA 1977). As stated by the court in Ramada Development Company v. Rauch, 644 F.2d 1097 (5th Cir. 1981):

The five-day delivery requirement is far from insignificant to the Florida courts. Failure to allege service of the affidavit, as required, results in a dismissal of the claim upon motion. Falovitch v. Gunn & Gunn Constr. Co., 348 So.2d 560 (Fla.Dist.Ct.App.1977). The party seeking to enforce the lien has the burden of pleading and proving compliance with the statute. Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc., 360 So.2d 1278 (Fla.Dist.Ct.App.1978). If the affidavit has not been timely delivered a dismissal without leave to amend is proper even if the affidavit was, in fact, delivered, because amendment would be futile. Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.Dist.Ct.App.1975).

Id. at 1109.

Amendment of the complaint in the instant case would only have been proper if the contractor would have been able to allege service of the affidavit in compliance with section 713.06(3Xd)1. Ramada Development Company v. Rauch, 644 F.2d 1097 (5th Cir. 1981); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975). Having allowed amendment of the complaint and it being apparent that the complaint still did not allege that the required affidavit was served at least five days before instituting the suit, the court should have dismissed the amended complaint because the amendment was futile. The evidence and the testimony of the contractor at trial showed that section 713.-06(3)(d)l had not been complied with and, therefore, the court should have granted the owner’s motions to dismiss made at trial. Finally, because the contractor failed to prove at trial that he complied with section 713.06(3)(d)l, the lower court erred in entering judgment in favor of the contractor.

Pursuant to section 713.29, Florida Statutes, a party who successfully resists a claim to enforce a mechanic’s lien is the “prevailing party” and, hence, entitled to a reasonable attorney’s fee. Falovitch v. Gunn & Gunn Construction Co., 348 So.2d 560 (Fla. 3d DCA 1977). An owner who obtains a dismissal of a complaint for foreclosure of a mechanic’s lien due to the contractor’s failure to furnish the required affidavit under section 713.06(3)(d)l is entitled to a reasonable attorney’s fee. Id.; Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975). Therefore, the owner, as the prevailing party in the claim to enforce the mechanic’s lien, is entitled to an award of attorney’s fees.

The final judgment establishing a mechanic’s lien is reversed and remanded with directions to the trial court to vacate the judgment and to award the owner a reasonable attorney’s fee.

REVERSED AND REMANDED WITH DIRECTIONS.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: PER CURIAM.

text:
    Ralph Dieter FEATHERS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1313.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    Michael L. Ramos, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See State v. Werner, 402 So.2d 386 (Fla.1981).

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Harry Bernard JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1439.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Affirmed. See Green v. State, 414 So.2d 1171, No. 81-1013 (Fla. 5th DCA June 9, 1982) [1982 FLW 1241].

COBB, SHARP and COWART, JJ., concur.


author: COWART, Judge.

text:
    Victoria Kathleen WIGGINS, Appellant, v. Fred Clifton WIGGINS, Appellee.
    No. 81-1451.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    Richard Tombrink, Jr. of Law Offices of Joseph E. Johnston, Jr., P. A., Brooksville, for appellant.
    No appearance for appellee.
   COWART, Judge.

This is an appeal from an order granting a motion to stay a suit for partition of a former marital home.

Appellant and appellee were divorced January 2, 1980, and the father was awarded custody of the parties’ two minor sons. Although at the time of the divorce the trial court did not award either party exclusive possession of the parties’ jointly owned marital home, the father and the minor children remain living there. Subsequent to the divorce, the mother filed a complaint for partition. The father’s answer was, in effect, a confession and avoidance; he admitted the parties were now tenants in common and the property was indivisible, but alleged the minor children needed the home to live in and therefore requested the court stay the proceeding until such time as the children reached majority or ceased to live on the premises. Without taking any testimony, the trial court entered an order finding that it was in the best interests of the children that they be allowed to remain living in the former marital home and stayed the partition action until further order of the court on the condition the minor children remain in the father’s custody and reside on the premises. Additionally, the husband was ordered to make all mortgage payments on the property.

On appeal, appellant admits that the right to partition is not absolute, but contends it should only be denied in extreme cases, where granting the remedy would result in manifest injustice, see, e.g., Condrey v. Condrey, 92 So.2d 423 (Fla.1957); Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980), and argues that the instant facts are not sufficient to justify denying the remedy. However, the instant facts are analogous to the common situation where the cotenants were previously married and one party was awarded custody of the minor children and exclusive use of the property sought to be partitioned. See, e.g., Duncan v. Duncan, 379 So.2d 949 (Fla.1980); McRae v. McRae, 52 So.2d 908 (Fla.1951). In the latter situation, partition is denied. See, e.g., Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976); Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975). Cf. Hoskin v. Hoskin, 329 So.2d 19 (Fla. 3d DCA 1976) (partition denied a husband, where wife was awarded “exclusive possession” until the house could be sold). Appellant would distinguish the above case law since the trial court in the instant case did not originally award the husband exclusive possession of the marital home. We disagree and think the case of Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975), is instructive. There, the parties were divorced by a final decree awarding custody of the two minor children to the husband but silent with regard to the jointly owned marital home. The wife subsequently sued for partition. The husband then moved to modify the divorce decree to award him exclusive possession. When this was accomplished, he then used the divorce decree modification to successfully defend the partition action.

An award of exclusive possession is a form of child support and the trial judge may ultimately be correct in his assumption that children need a home and that a non-custodial parent always has the ability to meet that need to the extent of providing the children with the use of that parent’s undivided interest in what was the marital home, especially when, as here, the custodial parent is required to pay the expenses (mortgage payments) relating to such interest. However, in this instance there was no petition for modification of the divorce judgment framing issues as to the needs of the children and the mother’s ability to provide this form of support and no testimony on those issues. Therefore, we reverse to permit the custodial parent in this case to move to stay the partition action and to proceed along the lines followed by the custodial parent in Richardson.

Appellant’s motion to expedite is granted and oral argument is waived.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    David M. HARPHAM, Appellant, v. STATE of Florida, Appellee.
    No. 82-686.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    Charles A. Tabscott, Orlando, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

The trial court was correct in holding that it has no jurisdiction to consider a motion for collateral relief under Florida Rule of Criminal Procedure 3.850 while an appeal from appellant’s conviction is pending in this court. Fick v. State, 388 So.2d 1352 (Fla. 5th DCA 1980).

Procedurally, a request for a new trial based on newly discovered evidence is not properly brought under Rule 3.850. The correct way to seek relief on this ground is by a petition for writ of error coram nobis containing the necessary allegations. See Smith v. State, 400 So.2d 956 (Fla.1981); Hallman v. State, 371 So.2d 482 (Fla.1979).

The order of the trial court denying petitioner’s Rule 3.850 motion is AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


text:
    Jerry L. HURST, Appellant, v. STATE of Florida, Appellee.
    No. 82-732.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    Jerry L. Hurst, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217, (Fla. 5th DCA 1982).

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


author: CAMPBELL, Judge.

text:
    James Harold ETHERIDGE, a/k/a Booty, and Larry Etheridge, a/k/a George Larry Etheridge, Appellants, v. STATE of Florida, Appellee.
    No. 81-1467.
    District Court of Appeal of Florida, Second District.
    June 23, 1982.
    Jack T. Edmund and Marshall Slaughter of Edmund, McDaniel & Holmes, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

James and Larry Etheridge appeal their convictions for conspiring to traffic in cannabis. Having examined the three points raised by these appellants, we find that only one merits discussion. James Ether-idge contends that he withdrew from the conspiracy prior to arrest. He bases this contention on the following three separate affirmative acts. After earlier meetings between James, Larry, drug enforcement agents, and several other men involved in the importation scheme, he refused to discuss the planned importation of contraband with the agent who had infiltrated the conspiracy. Later, he told the agent that a co-conspirator, Hammond, conceived the plan alone. Finally, he had his phone number changed to prevent the agent from calling him.

Section 777.04(3), Florida Statutes (1981), defines conspiracy as follows:

Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy ....

This statute follows the common law view of conspiracy since it does not require an overt act. Slaughter v. State, 301 So.2d 762 (Fla.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975). In addition, the Florida Standard Jury Instructions in Criminal Cases (2d ed. 1981), explicitly state that the defendant need not undertake any act in furtherance of the offense. See also King v. State, 104 So.2d 730 (Fla. 1958); State v. Trafficante, 136 So.2d 264 (Fla.2d DCA 1961); 16 Fla.Jur.2d Criminal Law § 1547 (1979). Therefore, once the intent is formed and the agreement made, the conspiracy is complete. James’s refusal to further participate in additional criminal activity may have been sufficient to prevent conviction for other substantive offenses, but it is insufficient to undercut his conspiracy conviction here since he had already committed that offense.

Appellants’ trial counsel persuaded the trial judge to instruct the jury on the defense of abandonment by referring to section 777.04(5)(a). Section 777.04(5)(a) provides for the defense of abandonment only in regard to attempts, not conspiracies. Section 777.04 pertains to the three separate crimes of attempts, solicitation and conspiracy. Section 777.04(5) provides in subsection (a) for a defense to attempts, subsection (b) to solicitation and subsection (c) to conspiracies. Therefore, a person may escape liability for criminal conspiracy only under the circumstances enunciated in section 777.04(5)(c). The person relying on subsection (c) must show that he actually persuaded his confederates to abandon the enterprise or that he prevented the commission of the offense. James’s actions fall far short of this statutory requirement.

The trial court’s instruction on abandonment erroneously gave the jury the opportunity to consider Etheridge’s abandonment as a legitimate defense to conspiracy. The jury refused to acquit even with this erroneous instruction. Accordingly, we affirm the convictions and sentences of both appellants.

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


text:
    MASSEY-FERGUSON, INC., Appellant, v. SANTA ROSA TRACTOR COMPANY, INC., A Florida Corporation, Appellee.
    No. YY-464.
    District Court of Appeal of Florida, First District.
    June 24, 1982.

      Daniel C. Perri of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Richard P. Warfield and James A. High-tower of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellee.
   PER CURIAM.

For the second time this case appears before this court on Massey-Ferguson’s appeal from a final judgment awarding appel-lee compensatory and punitive damages. Massey-Ferguson v. Santa Rosa Tractor Company, 366 So.2d 90 (Fla. 1st DCA 1979). Several points raised by appellant merit discussion.

First, appellant argues that the award of punitive damages is contrary to law and not supported by the evidence. Appellant presents the well established rule that punitive damages are not generally recoverable in an action for breach of contract. Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957); 17 Fla.Jur.2d Damages, § 117. Recognizing that this rule does not pertain where the breach amounts to an independent, willful tort, appellant argues that no independent tort was committed by Massey-Ferguson, but that Massey-Ferguson was simply exercising its lawful rights, both contractual and statutory, to secure its collateral. Assuming, arguendo, that a tort could otherwise be made out on these facts, appellant first argues that the tort claim for trespass or interference with Santa Rosa’s business, for entering Santa Rosa’s premises and boxing equipment, is defeated by Santa Rosa’s tacit permission in allowing Massey-Ferguson’s agents to be on the premises for three days before being asked to leave and, that if Massey-Ferguson committed the tort by mistake, “in the bona fide assertion of a supposed right, but absent any element of malicious motive or wrong intention,” Winn and Lovett Grocery v. Archer, 126 Fla. 308, 171 So. 214 (Fla.1936), then an award of punitive damages is not warranted. Finally, assuming an independent tort could be made out on these facts, appellant argues that the tort did not rise to the level of “malice” or “wanton and willful conduct” essential to a claim of punitive damages, as stated in Henry Morrison Flagler Museum v. Lee, 268 So.2d 434 (Fla. 4th DCA 1972).

Appellee agrees with the general rule and its exception, that a breach of contract alone will not usually support an award of punitive damages but that this rule does not pertain where the breach amounts to an independent, willful tort. Appellee argues that coming on Santa Rosa’s property without permission and seizing parts constituted a trespass and an unlawful and unreasonable interference with appellee’s business. Appellee contends the willfulness and maliciousness of this tortious conduct supports the award of punitive damages.

Whether a seizure of property by someone claiming a security interest constitutes an independent tort clearly turns on the reasonableness of the defendant’s actions, a factual determination properly resolved by the jury. Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla. 1st DCA 1980); Quest v. Barnett Bank of Pensacola, 397 So.2d 1020 (Fla. 1st DCA 1981). Where a willful tort is properly pled and ample evidence presented, an award of punitive damages will be upheld. Johnson v. Lasher Milling Co., 379 So.2d 1048 (Fla. 1st DCA 1980).

In the present case, the evidence was sufficient to present a jury issue as to appellant’s liability for trespass and intentional, willful and malicious interference with appellee’s business. While it is apparent that the facts of the case are such as to give rise to inferences and arguments which would tend to defeat Santa Rosa’s claims, we agree with the trial judge that the questions presented were essentially for jury resolution, and there is no contention here that the jury instructions or verdict forms upon which the case was submitted were erroneous in any respect.

Appellant further argues that the evidence presented to the jury on the issue of loss of future profits was too speculative to allow the question to go to the jury. The general rule is that anticipated profits of a commercial business are too speculative and dependent upon changing circumstances to warrant a judgment for their loss. New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1936). But the rule is not an inflexible one, and if profits can be established with reasonable certainty, they are allowed. Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936). “The requisite to their allowance is some standard, such as regular market values, or other established data, by reference to which the amount may be satisfactorily ascertained.” 166 So. at 217. In Welbilt Corporation v. All State Distributing Co., Inc., 199 So.2d 127 (Fla. 3rd DCA 1967), loss of future profits was denied because no showing was made of overhead, costs or method by which the estimated unit profits or number of units could be determined.

Here, in support of its claim, Santa Rosa introduced into evidence two financial statements disclosing the operating costs of the business and showing a profit in the service department. Additionally, appellant introduced into evidence a computer printout, prepared by Massey-Ferguson, reflecting projected sales figures based on Santa Rosa’s 1971 sales figures, and there was testimony, albeit conflicting, as to Santa Rosa’s reasonably anticipated profits from the projected sales. We cannot say that there was a total absence of evidence to support the award of loss of future profits within the parameters of the cited cases and others on the subject.

Finally, the trial court’s ruling at the opening of the trial, granting Santa Rosa’s oral motion (made five days prior to trial) to amend the complaint by striking from the ad damnum clause relating to punitive damages the figure “$250,000.00,” has not been shown to constitute reversible error. See State of Florida ex rel. Rosenfeld v. Boyer, 145 So.2d 547 (Fla. 1st DCA 1962), and Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977). Appellant was aware at the outset that appellee was seeking substantial punitive damages, and thus there could have been no surprise on this score. We note further that the punitive damage award returned by the jury did not exceed the amount claimed in the ad dam-num clause before the “ceiling” was eliminated by amendment.

Accordingly, the judgment is AFFIRMED.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


author: MILLS, Judge.

text:
    Fred EIFERMAN, Appellant, v. GOLD COAST CHEMICAL CORPORATION, Appellee.
    No. AG-193.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Eugene M. Betts, Fort Lauderdale, for appellant.

      Thomas W. Conroy of Conroy & Simberg, P. A., Hollywood, for appellee.
   MILLS, Judge.

The claimant appeals an order dismissing his compensation claim. We affirm.

There is competent substantial evidence that the claimant was an independent contractor.

McCORD and SHIVERS, JJ., concur.


text:
    John Edward CLAPP, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-84.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    John Edward Clapp, in pro. per.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Paul S. Perkins v. Florida Parole and Probation Commission, Case No. AJ-148, 414 So.2d 264 (Fla. 1st DCA, Opinion filed May 21, 1982).

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    Dale KELTZ, Appellant, v. CITY OF MIAMI BEACH and Risk Management Services, Appellees.
    No. AH-410.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellant.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellees.
   MILLS, Judge.

The claimant appeals an order denying compensation for his heart attack. We affirm.

There is competent substantial evidence that the attack was not causally related to employment.

The order sufficiently explains the deputy commissioner’s reasoning to permit judicial review.

McCORD and SHIVERS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Donna S. COLLI, Appellee.
    No. AH-415.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellant.
    Harry M. Solomon of Joel Hirschhorn, P. A., Miami, for appellee.
   MILLS, Judge.

The State appeals an order suppressing evidence seized from Colli’s automobile. We affirm.

There is competent substantial evidence that the consent to search was not voluntarily given.

McCORD and SHIVERS, JJ., concur.


text:
    Robert Edward GATTO, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-473.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Robert E. Gatto, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

Gatto appeals the Commission’s refusal to review his original scoring following his biennial reinterview. We affirm.

The reinterview is not an excuse to reliti-gate the establishment of a presumptive parole release date.

There was no ex post facto violation, Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

McCORD and SHIVERS, JJ., concur.


author: McCORD, Judge.

text:
    Chase W. CRAWFORD, Appellant, v. Marianna Protsman CRAWFORD, Appellee.
    No. AK-303.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Judith J. Dougherty, Tallahassee, for appellant.
    Ralph Roberts, Jacksonville, for appellee.
   McCORD, Judge.

Chase W. Crawford (husband) appeals from the trial court’s order denying his motion to transfer venue in this dissolution of marriage action from Duval County to Leon County, Florida. We reverse.

Generally, the defendant’s privilege of venue permits him to object to an action being maintained in a county other than the one where he resides, where the cause of action accrued, or where the property and litigation is located. § 47.011, Fla. Stat. If he is sued in one of these three places, he may not object on the ground of “improper venue.” Board of Public Instruction v. First National Bank, 111 Fla. 4, 143 So. 738 (1932), aff’d 111 Fla. 4, 149 So. 213. However, in a dissolution of marriage action, the trial court is to look to the single county where “the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.” Carroll v. Carroll, 322 So.2d 53, 57 (Fla. 1st DCA 1975), cert. denied 341 So.2d 771 (1977). Considering the undisputed facts elicited at an evidentiary hearing below, we must conclude that Leon County is the last place where the intact marriage existed. Upon losing her prior job, Marianna Prots-man Crawford moved to and obtained an apartment in her name alone in Jacksonville in November of 1980. Her purpose in moving to Jacksonville was to manage and operate a new business owned by her and her husband. He remained in Tallahassee, where the couple had spent the previous eight years of their marriage. Their marital domicile, owned by the entireties, was also located in Tallahassee. The record establishes that the husband frequently journeyed to Jacksonville. However, his stays there were of a temporary and minimal sort, for the unrefuted testimony indicates that he only was there for weekends, more frequently when his wife was ill, less frequently when she was well. She, in turn, made journeys to Tallahassee for weekend visits. Most of the personal possessions garnered during the marital relationship remained in their Tallahassee home. Further, while the testimony indicates that the couple had several spats in Jacksonville, the wife agreed that the precipitating event for her seeking a divorce was an alleged assault in Tallahassee. Considering the totality of these factors, we think that Leon County is the appropriate choice for venue in this matter. It is the place where the husband continues to reside, where the property in litigation, for the most part, is located and where the parties were last present with a common intention to remain married. Incidentally, though not controlling on venue, since the wife agreed that the precipitating event for her seeking a divorce occurred in Tallahassee, it would also appear that Leon County is the place where the marriage is alleged to have become irretrievably broken.

Accordingly, we reverse the trial court’s order and remand with instructions that the cause be transferred to the circuit court in and for Leon County, Florida.

MILLS and SHIVERS, JJ., concur.


text:
    Edward HAYES, Appellant, v. STATE of Florida, Appellee.
    No. AL-244.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Baya Harrison, III, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

Hayes appeals the lower court’s denial of his motion for post-conviction relief. a motion for post-conviction relief is denied and the denial is not predicated on the insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the movant is not entitled to relief must be attached to the order of denial. Fla.R.Crim.P. 3.850. In this case, there are no attachments to the order and there was no evidentiary hearing held. Accordingly, the cause is reversed and remanded to the lower court with instructions to hold an evidentiary hearing or for attachment of the portions of the record as required by the Rule.

REVERSED and REMANDED.

McCORD, MILLS and BOOTH, JJ„ concur.


author: DANAHY, Judge.

text:
    Jesse LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-521.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

When this case was before us for the first time, we remanded it to the trial court for an evidentiary hearing on appellant’s insanity allegation. Livingston v. State, 383 So.2d 947 (Fla. 2d DCA 1980). Experts were appointed and the hearing was held.

Now appellant argues that the evidence presented to the trial court at the hearing fell short of compliance with the new Rules of Criminal Procedure mandated for use in determining the sanity of a defendant at the time of an offense and a defendant’s competence to stand trial. We agree with appellant.

On July 7, 1980, the trial court appointed two experts to examine appellant. Their reports were given at a hearing on July 11, 1980. The new Rules of Criminal Procedure applicable to such proceedings were adopted on July 18, 1980, but went into effect on July 1, 1980. In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980).

Nothing in this record indicates that either the trial judge, the attorneys, or the experts knew that the new rules were applicable to the proceedings in the case at bar. Nevertheless, we are compelled to review this case in light of the specific factors enumerated in those rules. The experts must consider and analyze those factors and must discuss several areas in their written reports. Cf. Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1969) (trial judge of adult court must consider specific statutory criteria and make written findings before imposing adult sanctions on a transferred juvenile); and Fry v. State, 359 So.2d 584 (Fla. 2d DCA 1978) (habitual felony statute mandates that the trial court make various findings before imposing an enhanced sentence). Our review of the written reports and the testimony of the experts reveals that their conclusions were not based on a consideration of each of the factors and their reports did not include a discussion of each of the areas required by Florida Rules of Criminal Procedure 3.211(a)(1) and 3.216(e). Compliance with the rules will facilitate intelligent appellate review.

Therefore, we REVERSE the order denying appellant’s motion for postconviction relief and REMAND the case for further proceedings to determine appellant’s sanity at the time of the offense and his competency to stand trial.

HOBSON, A. C. J., and BOARDMAN, J., concur.

      . Fla.R.Crim.P. 3.211 and 3.216.


text:
    Akiyoshi NAKAMURA and Rose M. Nakamura, Appellants, v. Arnold LEWIN, A. G. Ennis Realty, Inc., a Florida corporation, and Ted H. Burrows, Appellees.
    No. 81-1295.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.
    Robert H. Grizzard, II, Lakeland, for appellants.
    Frederick C. Kramer, Marco Island, for Arnold Lewin.
   PER CURIAM.

We affirm the final judgment of the trial court in all respects, except that the award of interest at the rate of twelve percent required to be paid by appellee, Arnold Lewin, to appellants shall be reduced to the contract rate of nine and one-half percent.

AFFIRMED but REMANDED with instructions to reduce the interest rate as provided for herein.

BOARDMAN, A. C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. R. J., a Child, Appellee.
    No. 81-2014.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Alfred J. Ivie, Jr., Dade City, for appel-lee.
   CAMPBELL, Judge.

This case presents the issue of whether the amount of time the state has to file a delinquency petition is forty-five days from the date the child is taken into custody as provided by section 39.05(6), Florida Statutes (1981), or forty-five days from the date the complaint is referred to a juvenile intake office as provided by Florida Rule of Juvenile Procedure 8.110(e).

A complaint against the appellee was referred to the juvenile intake office on June 25, 1981. On August 18, 1981, fifty-four days from the date of intake, the state filed a delinquency petition against the appellee. The appellee, however, was never taken into custody. On September 22, 1981, the trial judge dismissed the petition on the basis that it was not timely filed under Florida Rule of Juvenile Procedure 8.110(e). Rule 8.110(e) provides:

On motion by or in behalf of a child a petition alleging delinquency shall be dismissed with prejudice if it was not filed within forty-five (45) days from the date the complaint was referred to the intake office.. .. (Emphasis added.)

Section 39.05(6) substitutes “45 days from the date the child was taken into custody” for the underlined portion of rule 8.110(e) quoted above. Since the statute was amended as of July 1, 1980, it is clear that the new statutory language applies. Thus, rule 8.110(e) is in direct conflict with section 39.05(6). The statute, rather than the rule, controls because the matter is one of substantive, not procedural law. L. H. v. State, 408 So.2d 1039 (Fla.1982); State v. D. B. C., 413 So.2d 455 (Fla. 5th DCA 1982).

In light of the fact that appellee was never taken into custody, the time for filing a delinquency petition as established by section 39.05(6) had not yet begun to run. Thus, the trial court erred in granting ap-pellee’s motion to dismiss the petition.

Accordingly, this cause is reversed and remanded for trial.

REVERSED and REMANDED.

GRIMES, A. C. J., and RYDER, J., concur.


author: GRIMES, Judge.

text:
    Joseph S. DRAGO, Appellant, v. STATE of Florida, Appellee.
    No. 81-2078.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.

      Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, St. Pe-tersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case illustrates the difficult problems sometimes faced by trial judges in dealing with accused persons who- express unreasonable dissatisfaction with their court-appointed attorneys.

The state charged appellant with grand theft. The court declared appellant indigent and appointed the public defender to represent him. Several weeks later, Public Defender Bruce Taylor filed a motion to withdraw as appellant’s counsel. At a hearing before Judge Swanson, Mr. Taylor explained that he and appellant had disagreed over whether to call a certain witness at the trial. Appellant asserted that he wanted to act as co-counsel, but Mr. Taylor was unwilling to agree to such an arrangement. The court denied the motion to withdraw and stated that Mr. Taylor would remain as sole counsel for appellant.

Several days later, Mr. Taylor filed a second motion to withdraw as counsel, pointing out that appellant was insisting that he file motions attacking the Pinellas County jury selection system which he believed to be legally unfounded. Mr. Taylor further stated that appellant had cursed and screamed at him during the course of an interview and had tried to climb through the windows separating attorneys from their clients at the jail. At the hearing on this motion held before Judge Bryson, the court pointed out to appellant that he could either hire his own counsel, represent himself, or have Mr. Taylor represent him. Appellant responded that he could not afford to hire his own counsel and stated that he wanted someone other than Mr. Taylor appointed to represent him. The court announced that Mr. Taylor was a good lawyer, and that he would not direct a change in appointed counsel. Appellant observed that if Mr. Taylor would not file the motions which he wanted filed, he did not want Mr. Taylor to be his lawyer. The court then announced that the appellant could represent himself.

Subsequently, the appellant filed a pro se motion to appoint private counsel to represent him at the court’s expense. At the hearing on this motion conducted by Judge Swanson, the following colloquy occurred:

THE COURT: Well, as I’ve indicated, Mr. Drago, if you can assure the Court that you will cooperate—
THE DEFENDANT: I will cooperate. I will cooperate any way I can.
THE COURT: And give them whatever they need and not cause them any other physical problems, I’ll reappoint the Public Defender’s office. I don’t like to see somebody coming to trial without a lawyer. I think it’s damaging both to yourself and to the system. But if you feel that you can get along with the Public Defender’s office and you will promise this Court that you will neither curse him, insult him or cause any damages to any assistant Public Defender who is interviewing you, I will reappoint the Public Defender’s office. Can you do that?
THE DEFENDANT: Just as long as it’s not the same attorney, because I don’t think me and him can get along.
THE COURT: I’m not going to guarantee that. That’s your choice. I’ll reappoint the Public Defender’s office, whomever it may be. It may be the same attorney. It may be another attorney. But you’ve got to assure the Court that you will not physically assault him or curse him or, in any way, talk disparagingly — disagree if you want to.
THE DEFENDANT: That’s our whole problem is disagreement.
THE COURT: Can you promise the Court that you will not try to physically assault or cause any problems with the Public Defender?
THE DEFENDANT: Yes.

At this point, the state attorney objected to the continuance of the case which would be necessary if the public defender were reappointed. He argued that the case had been postponed once before on the appellant’s motion and that the state’s witnesses were present and ready for trial. In actuality, the case had already been continued twice but one of the postponements was at the instance of the state. The court ultimately denied the motion to reappoint counsel, and the case went to trial on the same day. Appellant represented himself before the jury but to no avail.

The sole issue on appeal is whether the court erred in finding that appellant had waived his right to the assistance of counsel and in not reappointing counsel upon the appellant’s request. Every indigent person accused of a crime is entitled to the services of a court-appointed lawyer. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). On the other hand, an accused has a constitutional right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Clearly, however, one may not presume that a criminal defendant has waived the right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Before a defendant may be permitted to represent himself, the court must be certain that he has been made aware of the dangers and disadvantages of self-representation. Faretta v. California. In order to represent himself, the accused must competently and intelligently forego the traditional benefits associated with the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1937).

Florida has codified these principles in Florida Rule of Criminal Procedure 3.111(d) which states:

(d) Waiver of Counsel.
(1) The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any state of the proceedings.
(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.
(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.
(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest to the voluntary execution thereof.
(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

Measured by the foregoing standards, we cannot say that appellant knowingly and intelligently waived his right to counsel. He was not advised of the pitfalls of acting as his own lawyer. The court made no inquiry into his mental condition, his intelligence, or his ability to defend himself against the state’s charge. Moreover, when it became evident that the appellant again desired to have appointed counsel and when he finally agreed to cooperate with whoever was appointed to represent him, the court should have reappointed counsel even if it meant a further continuance of the trial.

In reaching our conclusion, we wish to make it clear that the court properly advised appellant that he did not have a right to decide which court-appointed counsel would defend him. Furthermore, Mr. Taylor correctly refused to accede to appellant’s request to file motions which he believed devoid of merit. There is no doubt that appellant’s unreasonable behavior contributed to the predicament in which he found himself, but this cannot excuse the denial of his constitutional guarantees. See Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981), in which an equally recalcitrant defendant had been erroneously required to proceed to trial without counsel. The concluding paragraph of the court’s opinion is remarkably apropos:

In the instant case the trial judge failed to comply with either the Florida rule or the Faretta standard. There was no inquiry into Mitchell’s capacity to intelligently and understandingly make the choice. Cf. Williams v. State, 337 So.2d 846 (Fla.2d DCA 1976). More specifically, there was no inquiry of record as to Mitchell’s mental condition, age, education or experience.
While the record strongly suggests that nothing the trial court could have done, short of discharge of the defendant, would have satisfied Mitchell, the indicated requirements were not met. We can understand, and perhaps even concur in, the trial court’s finding that the conduct of the defendant Mitchell constituted a rejection of court-appointed counsel. But without the inquiry required in Rule 3.111(d) or the appearance of private counsel, the public defender (whether Ca-cavio, Thurman or Pierce) should not have been discharged, even though that defender’s ensuing task might have been unpleasant. Mitchell had no right to pick and choose an appointed attorney, and the trouble in this case was that this fact was never fully impressed on him. It was an all or nothing proposition—the office of the public defender or no one. If no one, then the rule sets forth the requisite procedure.

407 So.2d at 1007.

The judgment is reversed, and the case remanded for a new trial.

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


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Ricky Darrell HICKS, Appellee.
    No. 81-2620.
    District Court of Appeal of Florida, Second District.
    June 25, 1982.
    Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender and L. S. Alperstein, Asst. Public Defender, Bartow, for appellee.
   RYDER, Judge.

This is an appeal from an order granting appellee’s motion to suppress evidence. The state argues that granting the motion was error as no search occurred. We agree and reverse.

The undisputed facts establish that while on a predrawn patrol in an area which had experienced previous disturbances, a deputy sheriff observed a vehicle parked on the side of the road with four persons sitting or standing around it. As the deputy approached the vehicle, he observed Hicks stuffing something down into his shorts. Thereafter, he observed a “bulged area” in the appellee’s shorts. Appellee also attempted to conceal the bulge by placing his hands over the area and by turning away.

The deputy requested, and was given, identification from each individual. He verified each name and by radio established that none had outstanding warrants against them.

After a second deputy arrived on the scene, appellee was asked by the first officer, “What is that inside your shorts?” The appellee did not verbally respond. However, he immediately pulled from his shorts two clear plastic bags of marijuana whereupon he was arrested for possession of marijuana. The motion to suppress followed and was granted.

The issue with which we are here concerned is whether Hicks was ever subjected to a search when his spontaneous production of marijuana came as a nonverbal response to an inquiry by the police. Appel-lee asserts that the production of the marijuana was not freely and voluntarily made, but rather was in acquiescence to the apparent authority of the police. Hunt v. State, 371 So.2d 205 (Fla.App.1979). Although at first blush one might presume Hunt is controlling here, it is not. In Hunt, the officer went further than merely inquiring as to what was in Hunt’s pockets, he ordered Hunt to display to him the contents of the pocket. Thus, unlike the appel-lee in the instant case, Hunt was compelled to follow the orders of the officer.

Here, Hicks was not obliged to produce anything. He was not subjected to any orders or demands of the deputy. Hicks was simply asked a question. Literally, it was the appellee himself who went beyond the officer’s initial inquiry and spontaneously extracted the marijuana from his shorts into plain view. We believe the facts of this case are controlled by our opinion issued in Neely v. State, 402 So.2d 477 (Fla. 2d DCA 1981). Based upon these circumstances, we, therefore, hold there was no illegal search and seizure because there was no search at all. Neely, supra. Thus, the marijuana was subject to proper seizure and should not have been suppressed below.

Accordingly, we REVERSE the order granting appellee’s motion to suppress evidence and REMAND to the trial court for further proceedings consistent with this opinion.

HOBSON, A. C. J., and BOARDMAN, J., concur.


author: BOOTH, Judge.

text:
    Michael David STANFORD, Appellant, v. STATE of Florida, Appellee.
    No. AD-396.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Hugh A. Carithers, Jr., of Sheppard & Carithers, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment of conviction of possession of a firearm by a convicted felon entered on a plea of nolo contendere, specifically reserving the right to appeal the denial of motion to suppress certain physical evidence. The issues presented concern the authority of an auxiliary police officer to conduct a stop and frisk, to arrest and to perform other law enforcement functions.

The facts are that, during the early morning hours of February 17, 1981, a full-time deputy sheriff, Fedele, accompanied by an auxiliary law enforcement officer, Amy, and a deputy sheriff, Keefer, were summoned to the Speakeasy Lounge, a liquor lounge, to investigate an altercation. On arrival at the scene, the officers encountered the victim of the altercation, who told the officers that an individual had pointed a pistol at him during a physical altercation with other persons. At this point, a person in an automobile attempted to leave the scene, the victim identified that person as one of the assailants, and officer Fedele advised auxiliary officer Amy to continue interviewing the victim while he and officer Keefer stopped and interrogated the alleged assailant.

Shortly thereafter, while Fedele and Keefer were questioning the alleged assailant, a third party advised auxiliary officer Amy that one of the assailants was in the lounge. Officer Amy asked the victim to accompany him to the lounge for the purpose of identifying the second assailant. As they approached the entranceway of the lounge, they met appellant, leaving. The victim informed auxiliary officer Amy that appellant was the individual who had drawn the gun on him during the altercation. Amy immediately stopped appellant and inquired whether he was carrying a pistol. Appellant responded negatively and consented to a pat-down search, during which time the pistol was discovered. Officer Amy then arrested, handcuffed and brought appellant and the pistol to deputy sheriff Fedele.

Appellant contends that only a full-time law enforcement officer, as defined in Florida Statutes, Section 943.10(1), may conduct a stop and frisk and that an auxiliary officer is without authority to arrest and perform law enforcement functions except under the immediate supervision of the law enforcement officer with whom he is working.

Appellant’s contention that the statutory authority accorded to a “law enforcement officer” to conduct a “stop and frisk” pursuant to Section 901.151, Florida Statutes (1979), extends only to a “law enforcement officer” as defined in Section 943.10(1), Florida Statutes, is without merit. Section 943.10(1) defines a “law enforcement officer” as any person:

... employed full time by any municipality or the state or any political subdivision thereof, who is vested with authority to bear arms and make arrests, and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

A “part-time law enforcement officer” is defined in Section 943.10(5), Florida Statutes, as:

. . . any person employed . . . less than full time, . .. with or without compensation, who is vested with authority to bear arms and make arrests and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.

Under appellant’s narrow interpretation of “law enforcement officer,” a part-time officer, as well as an auxiliary officer, would be excluded from conducting a “stop and frisk.” We decline the invitation to adopt such a strained interpretation.

An “auxiliary law enforcement officer” is defined in Section 943.10(6), Florida Statutes, as:

... any person employed ..., with or without compensation, who aids or assists a full-time or part-time law enforcement officer and who, while under the direct supervision of a full-time or part-time law enforcement officer, has the authority to arrest and perform law-enforcement functions.

An auxiliary officer is accorded the authority, under described conditions, to arrest and perform law enforcement functions. Section 943.10(5), Florida Statutes, supra. The power to “stop and frisk” is undoubtedly a law enforcement function, and the power to arrest includes the lesser intrusive power to “stop and frisk.” Accordingly, we conclude that the term “law enforcement officer,” as used in Section 901.151, includes an auxiliary officer.

The authority of an auxiliary officer, however, is not without limits. See Section 943.10(5), Florida Statutes, supra. Also, the Florida Administrative Code, Section 11B-10.01(1), provides that a person functions as an auxiliary officer when he is “in the company and under the direct control of a certified police officer” while conducting patrol operations for the purpose of detection, prevention and suppression of crime.

In the instant case, the auxiliary officer was working with certified law enforcement officers who were in the immediate vicinity, but the auxiliary officer was not visible to his control officer at the time he made the stop and frisk and arrest. Appellant contends that this is insufficient, relying on the decision in Piperato v. Zuelch, 395 So.2d 1231 (Fla. 3d DCA 1981), wherein the court held that a statute prohibiting a person from tatooing the body of any human being, unless the tatooing was performed “by a person under the direction” of one licensed to practice medicine or dentistry, was to be construed as requiring that the supervisor have personal contact with the person being tatooed. We agree with the interpretation of the language of the statute governing tatooing in the Piperato case. However, the rationale of direct contact in the circumstances of the business being regulated in that case does not apply to law enforcement officers in the everyday exercise of their duties.

The legislature obviously intended auxiliary law enforcement officers to provide full and part-time law enforcement officers with material assistance. It was assured that the auxiliary officers would function in a subsidiary capacity by requiring that they exercise their arrest authority and perform law enforcement functions only while “under the direct supervision” of a full or part-time law enforcement officer.

Given the exigencies inherent in the law enforcement profession, we conclude that the requirement that auxiliary officers function while “under the direct supervision” or “in the company and under the direct control of” a full or part-time law enforcement officer is met as long as the auxiliary officer is directly accountable to a full or part-time law enforcement officer who is in the immediate vicinity of the scene and who has ultimate control of the situation. The degree of supervisory control necessary would be dependent upon the exigencies created by the circumstances.

In the instant case, the nature of the victim’s accusation against appellant created the need for immediate action, and officer Amy responded to that need diligently and within the scope of his authority.

Accordingly, the order of the trial court is affirmed.

SHIVERS and JOANOS, JJ., concur.


author: THOMPSON, Judge.

text:
    INDIAN RIVER COMMUNITY COLLEGE and American States Insurance Company, Appellants, v. Aurthalean CHESSER, Appellee.
    No. AG-322.
    District Court of Appeal of Florida, First District.
    June 28, 1982.

      Prank G. Cibula, Jr., West Palm Beach, Bernard J. Zimmerman, Orlando, for appellants.
    J. Blayne Jennings of Jennings & Jordan, Gifford, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order contending, inter alia, that the deputy commissioner erred in awarding claimant temporary total disability (TTD) benefits. We agree and reverse.

Claimant is a 30-year-old physical education teacher holding a Master’s degree. She sustained a compensable accident and injury to her back and hip on June 27,1977, when she slipped and fell taking a shower on the job. On June 29, July 7, and July 15, 1977, she was seen by an orthopedic specialist who determined that she had no orthopedic pathology and no disability. She returned to work approximately a week after the accident and continued working throughout the remainder of the 1977-1978 school year. During the summer of 1978, she began courses toward her Ph.D. at Jackson State University in Jackson, Mississippi. At the conclusion of the summer school session she returned to her regular employment. During this time she was also seen by another orthopedist to whom she was referred by the E/C. Claimant said she did not return to see this doctor because he was unable to do anything for her.

On September 5, 1978, the claimant began seeing a neurologist to whom she was referred by her attorney. This doctor’s examination, which included an EMG, was negative. Although the neurologist could obtain no objective physical findings, she prescribed physical therapy because of claimant’s complaints. Claimant was then referred to an orthopedic surgeon by her attorney. This doctor did find objective evidence of some injury to the cervical and lower lumbar spine, but was of the opinion that the claimant was physically and medically capable of performing employment as a physical education coach. In January 1979, claimant requested sabbatical leave so she could attend the University of Southern Mississippi during the 1979-1980 school year. Approximately five weeks later, in early March 1979, claimant requested sick leave, which was granted.

At a hearing held April 10, 1979, the parties agreed that the claimant should return to the neurologist for referral to a physical therapist. She continued with the therapy until some time in June 1979 when she moved to Baton Rouge, Louisiana, in order to be near her family and to continue work on her doctorate at Louisiana State University.

On October 2, 1979, she was seen by a neurologist in Baton Rouge who was unable to find any evidence of central nervous system damage or disc injury and unable to assign any disability on a neurological basis. Claimant then sought treatment from an orthopedist in New Orleans who hospitalized her in November 1979 in order to perform a myelogram. According to this orthopedist, the myelogram revealed a ruptured disc at the C-5, C-6 level, and normal results from the lumbar spine area. He recommended surgery for the cervical disc problem but the claimant was reluctant to undergo surgery. Approximately six months later, the orthopedist determined that claimant had both a cervical and a lumbar disc rupture based on the claimant’s clinical symptoms. Throughout the remainder of 1980 and early 1981, the orthopedist continued to advise the claimant to again enter the hospital for additional workup. On March 13, 1981, he operated and discovered an extremely irritable L-5, S-l nerve root and a bulging disc which was then surgically excised. He was of the opinion it would be eight months to a year from the date of the operation before claimant could reach maximum medical improvement (MMI).

The deputy found that the claimant was temporarily and totally disabled beginning March 20, 1979 and continuing until the claimant reaches MMI. There is no substantial competent evidence to support the finding that the claimant was TTD from March 20, 1979 to the date of her hospitalization on November 12, 1979, or that she was TTD during the period between her 1979 hospitalization and her hospitalization on February 25, 1981. The claimant had worked or attended school in furtherance of her education for almost two years after her accident, during which period none of her doctors, including the two to whom she was referred by her attorney, found that she was unable to work. There was no medical evidence whatever that claimant was totally disabled on and after March 20, 1979. She had attended school part of the time and had worked as a substitute teacher. There is no evidence that the claimant made any job search other than by applying for work as a substitute teacher, and there is no basis in the record for excusing an adequate job search. Although the last orthopedist treating her testified that there was a period of time when she was TTD from performing her physical education job, he said nothing about her inability to perform other jobs, including that of substitute teacher of general subjects. The only evidence regarding her ability to work is that she not only could work but did work as a substitute teacher of general subjects when called upon. The award of TTD from March 20, 1979 to November 12, 1979, and from November 21, 1979 to February 25, 1981, is therefore reversed.

We find the remaining assignments of error to be without merit.

A review of the record reveals that there were certain comments made by the deputy to counsel for the E/C that were both unnecessary and unwarranted. Such comments serve only to detract from the decorum of a judicial hearing and cast doubt on its fairness.

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


author: WIGGINTON, Judge.

text:
    TAMPA MAID SEAFOOD PRODUCTS and Wausau Insurance Companies, Appellants, v. Carol V. PORTER, Appellee.
    No. AH-130.
    District Court of Appeal of Florida, First District.
    June 28, 1982.

      Ivan Matusek, St. Petersburg, for appellants.
    Susan R. Whaley, of Macfarlane, Ferguson, Allison & Kelly, Tampa, and William D. Douglas, of Hamilton & Douglas, P. A., Tampa, for appellee.
   WIGGINTON, Judge.

The employer/carrier appeal the order of the deputy commissioner finding that claimant, on March 26, 1981, suffered a compensable accident, arising out of and in the course of her employment, when she was injured during working hours on the employer’s premises by a fellow employee. We affirm.

Claimant is a twenty-two year old woman who at the time of her injury was employed by Tampa Maid Seafood Products to peel shrimp. Both claimant and a co-employee, Erma Campbell, were romantically involved with a third co-employee, Donald Fields. Claimant and Campbell had no other personal relationship outside their work together, and all three initially met through their employment at Tampa Maid Seafood Products.

During lunch hour, on March 25, 1981, claimant informed Campbell of her relationship with Fields. Although Campbell admitted at the time of this conversation that she was not upset, she left work early to avoid any further confrontations with claimant. On the following morning, the date of the accident, Campbell noticed a number of co-employees going from table to table “gossiping.” When she discovered that the rumors involved claimant and herself, she confronted claimant, brandishing a knife supplied by the employer for peeling shrimp. An altercation ensued, with Campbell ordering claimant to keep her name out of the gossip. Claimant reached out to Campbell who threw up her hand, allegedly to avoid being hit. The women launched into a fist fight during which Campbell stabbed claimant in her side and sliced her hand across the knuckles. Claimant later testified that she had never been involved in a dispute with Campbell before and had been under the impression that, despite the love triangle, Campbell did not harbour any feelings of animosity toward her.

First, we agree that claimant was not the aggressor. This, however, is not the deciding factor for there remains the question of whether the stabbing arose out of the employment. The determinative legal principles are set forth in San Marco Company, Inc. v. Langford, 391 So.2d 326 (Fla. 1st DCA 1980), quoting from Professor Larson in his treatment of the subject:

When the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment under any test.
******
When it is clear that the origin of the assault was purely private and personal, and that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable even in states fully accepting the positional-risk test, since that test applies only when the risk is “neutral.”

391 So.2d at 326-327.

Although in San Marco the above rule as applied to the facts worked to deny the claimant compensation, in the instant case, the deputy correctly determined that there were several circumstances which removed it from the above rule:

The dispute culminating in the assault was exacerbated by the employment because of the close proximity between the claimant and her assailant; the relationship between them and Mr. Fields originated at work; and the knife used in the assault was used at work, thus “facilitating the assault.” It was not merely fortuitous that the assault occurred on the premises of the employer. Finally, there is no question that the claimant was not the aggressor.

Thus, by facilitating an assault which would not otherwise have been made, the employment became a contributing factor. Campbell became incensed over the gossip which, in all respects, is a beast native to the work place. In short, the “tormentor was an established fixture of the employment environment.”

We agree with the deputy that claimant’s injury arose out of and in the course and scope of her employment. Therefore, the deputy’s award of temporary total disability compensation, medical expenses, attorney’s fees and costs is AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.

      . 1 A. Larson, The Law of Workmen’s Compensation, § 11.21 (1978).

      . In San Marco, the fact that the assault occurred at the work site was strictly fortuitous. Chances were that the assailant would not have ceased searching for the claimant beyond the work place, i.e., the assault was inevitable, without regard to the employment. See 1 A. Larson, The Law of Workmen’s Compensation, §§ 11.00 and 11.21.

      . Hartford Accident & Indemnity Company v. Cardillo, D.C.Cir., 112 F.2d 11 (1940), cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). As Justice Rutgers so astutely observed in the leading case of Cardillo: “[W]ork places men under strain and fatigue from human and mechanical impacts creating frictions which explode in myriads of ways, only some of which are immediately relevant to their tasks. Personal animosities [created] ... outside the job are magnified to the breaking point by its compelled contacts.”


text:
    Ricky HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. AH-362.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is remanded to the trial court with directions to specify the period of credit time allowed as required by Section 921.-161(1), Florida Statutes. In all other respects, the judgment and sentence under review is affirmed.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    Howard BREWER, d/b/a Brewer Realty, Appellant, v. BIBLE CHRISTIAN CHURCH, INC., formerly known as Pensacola Christian Church, Inc., Appellee.
    No. AH-364.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Edwin S. Zeitlin, Pensacola, for appellant.
    William F. Hoffman, Pensacola, for ap-pellee.
   PER CURIAM.

The court cannot review by appeal an order of the circuit court entered in the exercise of its appellate jurisdiction. Article V, Section 4(b)(1), Florida Constitution. However, we may elect and have elected to treat the proceeding as a petition for common law certiorari. Petterson v. Nelson, 269 So.2d 22 (Fla. 4th DCA 1972). Because we find that the essential requirements of law have not been violated, certiorari is denied.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: WENTWORTH, Judge.

text:
    SCOTT SMITH OLDSMOBILE and Lynn Underwriting Co., Appellants, v. Edward HOFFARD, Appellee.
    No. AJ-48.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Bernard J. Zimmerman, and Marshall S. Adler, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order which we affirm except as to the award of wage-loss benefits subsequent to the determined date of maximum medical improvement. No explicit claim was made for such benefits, and at the beginning of the hearing claimant’s attorney expressly indicated that entitlement to such benefits was not at issue and was not being litigated. Our review of the record convinces us that the parties did not thereafter expand the scope of the hearing. A deputy may not rule on issues which are beyond the agreed scope of a hearing, and in the circumstances of this case it was therefore error to order payment of wage-loss benefits subsequent to the date of maximum medical improvement. See Pompano Roofing Co. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

The order appealed is amended so as to delete the language ordering payment of wage-loss benefits subsequent to the date of maximum medical improvement, and the order is hereby affirmed as amended.

BOOTH and WIGGINTON, JJ., concur.