text:
    FORTUNE PERSONNEL AGENCY OF FT. LAUDERDALE, INC., a Florida corporation, Petitioner, v. SUN TECH INC. OF SOUTH FLORIDA, a Florida corporation, d/b/a Sun Tech of South Florida, Robert Sackett and Michael Winess, Respondents.
    No. 82-396.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Marshall G. Curran, Jr., of Spear, Deuschle & Curran, P.A., Fort Lauderdale, for petitioner.
    Gary E. Garbis of Virgin, Whittle & Gar-bis, Miami, for respondents.
   GLICKSTEIN, Judge.

There is a legal crescendo among employers throughout this country who appropriately contend that they are the risk-takers in the commercial world; and that, having accumulated trade secrets while facing and surmounting those risks, they should be protected from employees to whom they have entrusted their hard-earned secrets. Such contention is at the heart of petitioner’s amended complaint.

Years before the legislature acted on the general subject, the courts of this state recognized customer lists and business information as trade secrets and protected employers whose employees were exposed to confidential information. Then the legislature enacted section 90.506, Florida Statutes (1979) — which was in effect when petitioner’s alleged causes of action arose; it provides:

A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by him if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or his agent or employee.

Petitioner seeks a writ of certiorari to quash an order of the trial court which required the divulgence of trade secrets. As the order reads, and in the present posture of the litigation between the parties, we are concerned that it may not truly manifest the trial court’s intent.

To be more specific, when the trial court entered the order we are being asked to quash, there existed in the trial court a temporary restraining order in favor of petitioner. That order enjoined respondents from using any confidential information of the petitioner of which they may have been possessed. In fact, one of respondents’ arguments in their response to the present petition was that they needed the information which the present questioned order made available to them so that they would not be subject to contempt of the temporary restraining order.

While the present petition was pending, this court held that the trial court should have dissolved the temporary restraining order pursuant to Florida Rule of Civil Procedure 1.610(b)(2) because, in essence, the order was without notice and had expired after ten days from the date of entry. For all we know, the trial court entered the order under review in reliance upon the continued existence of the temporary restraining order. That certainly would explain the absence of any language in the order under review restricting the use of the subject information. In any event, that order cannot stand as it was entered when the temporary restraining order was in existence.

In view of the seriousness of the harm that can result from the non-protection of trade secrets (which the courts and the legislature of this state have recognized expressly), and the necessity to balance protection against the right of discovery in a pending action in which the subject matter is those secrets, we grant the writ and quash the order. This will enable the trial court to consider the motions involved without the existence of a temporary restraining order.

ANSTEAD and HURLEY, JJ., concur.

      .See Note, Protection of Trade Secrets in Florida, 24 U.Fla.L.Rev. 721 (1972):
      Theft of trade secrets is a growing concern for many industries in the nation. As the cost of research and development increase the theft of trade secrets becomes a lucrative, although somewhat immoral, alternative to the expenditure of one’s own funds. The art of industrial espionage has reached such a high level of sophistication that some companies pay executives 35,000 dollars a year to combat the problem. Yet of the estimated $3 billion worth of trade secrets stolen annually, only five per cent are obtained through industrial espionage; the remainder being learned by employees in the course of their employment and later utilized by them or their subsequent employers.
      (Footnotes omitted.) See also 8 J. Wigmore, Evidence § 2212 (McNaughton rev. 1961).

      . See Bert Lane Co. v. International Indus., Inc., 84 So.2d 5 (Fla.1955); Inland Rubber Corp. v. Helman, 237 So.2d 291 (Fla. 1st DCA 1970).

      . See Orkin Exterminating Co. v. Truly Nolen, Inc., 117 So.2d 419 (Fla. 3d DCA), cert. denied, 120 So.2d 619 (Fla.1960).

      . Sun Tech Inc. v. Fortune Personnel Agency, 412 So.2d 962 (Fla. 4th DCA 1982).

      . The order restrains respondents’ further divulgence, not use.

      . It is surprising to us that none of the parties mention section 90.506, Florida Statutes (1979), to this court. Having been advised by the parties that no transcript exists of the hearing which led to the order under review we can only speculate what kind of reference, if any, was made to the statute at the trial level. The Law Revision Council Note — 1976, to the section, says in part:
      This section recognizes a privilege to refuse to disclose trade secrets if the lack of disclosure does not tend to conceal fraud or otherwise work injustice. When a court orders disclosure, the section provides for the issuance of a protective order.
      The issue of trade-secret privilege usually arises when a litigant seeks to compel disclosure of secret information which is commercially valuable to his opponent. Florida Rule of Civ.Pro. 1.280(c)(7) which permits the trial judge, upon motion of a party from whom discovery is sought, to issue a protective order “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way” is extended by this section to evidentiary matters at trial. The difference in circumstances at the discovery stage and at the trial may be such as to require a different ruling at the trial.
      The purpose of the privilege is to prohibit a party from using the duty of a witness to testify as a method of obtaining a valuable trade secret when the lack of disclosure will not jeopardize more important interests. It is widely recognized that the trade-secret privilege is not absolute. 8 Wigmore, Evidence § 2212(3) (McNaughton rev. 1961). In each case the judge must weigh the importance of protecting the claimant’s secret against the interests in facilitating the trial and promoting a just end to the litigation. See 15 Wayne L.Rev. 1286, 1347 (1969). Such factors as the potential impact of disclosure upon the holder’s business, see Note, Protection of Trade Secrets in Florida: Are Present Remedies Adequate?, 24 U.Fla.L.Rev. 721 (1972), protection afforded by copyright and patent laws, see Calif.Evid.Code § 1060 (Law Revision Commission Comment), and necessity of disclosure to the presentation of the opponent’s case, see 15 Wayne L.Rev. 1286, 1349 (1969), may guide the judge in deciding whether to order disclosure. However, the judge is afforded wide discretion to permit the privilege to be invoked so long as the wrongdoer is not allowed to conceal his acts.
      This section permits the judge to order disclosure in any manner designed to protect the secret. While the most common means would probably be the in camera proceeding, other possible means of protecting the secret may include sealing the part of the record describing the secret, prohibiting disclosure of the secret to a witness, omitting details of the secret from the record, and wording the opinion in terms avoiding disclosure of the secret. See Annot., Safeguarding Trade Secrets, 62 A.L.R.2d 509 (1958).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Maria KNOWLES, Petitioner, v. Anthony STALLONE, Jr., Anthony Stallone, Sr., and Jeanette Stallone, his wife, jointly and severally, Respondents.
    No. 82-831.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Terence J. Watterson of Watterson & Dickenson, P.A., West Palm Beach, for petitioner.
    Donald R. Bicknell, Jr., of Gary, Dytrych, & Ryan, P.A., North Palm Beach, for respondents.
   PER CURIAM.

We sua sponte dismiss the petition for writ of certiorari as untimely. After the trial court granted respondents’ motion to discharge petitioner’s notice of lis pendens, petitioner filed a motion for rehearing rather than seeking a petition for writ of certio-rari. The motion for rehearing was denied almost two months after entry of the order which discharged the notice of lis pendens.

The motion for rehearing had “no effect on the time for filing” the petition for writ of certiorari. Florida East Coast Railway Co. v. Southern Sanitation Service, Inc., 370 So.2d 1200, 1200 (Fla. 4th DCA 1979). Thus, the present petition, which was filed eighty-two days after the discharge of the notice of lis pendens, was untimely. Fla.R. App.P. 9.100(c). See Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980).

DOWNEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bryon Paul HUNDLEY, Appellee.
    No. 82-1400.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals the grant of a motion to suppress evidence and statements. We reverse. The facts are not disputed and the only evidence offered on the motion was the testimony of the police officer who stopped but did not arrest the defendant. Defendant was later charged with grand theft of a Quasar turntable. The issue was whether the police officer had a founded suspicion at the time he initially stopped and questioned defendant.

The police officer was on routine patrol at approximately 5:00 a.m. in a primarily residential neighborhood. It was still dark and the particular area had recently been experiencing an increasing number of burglaries during the night. The defendant was observed walking along the road carrying a large box, which was marked as a Quasar stereo turntable. The defendant approached the police officer’s car and the officer asked him his name and why he was out at that hour. Defendant replied that he was returning from work and that he had bought the stereo turntable during the day at a Radio Shack store. During this contact, the police officer had a chance to see the defendant’s face and thought he recognized him as an individual described in a recent BOLO on a person committing residential burglaries in the particular neighborhood between 12 midnight and 8:00 a.m. During the conversational exchange, defendant sat the stereo box on the hood of the police car and the police officer copied the serial number off the box. After this brief conversation, defendant continued on his way. He was subsequently charged with theft of the turntable, and on motion the circuit court suppressed the defendant’s statements, the box, and the contents on the theory that the initial stop was not authorized. We disagree and reverse.

A founded suspicion was discussed at length in State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978), where the court stated at 1247 as follows:

A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guess-work, or hunch, and has no objective justification. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971)....
Merely driving around town in an out-of-state van, or walking along a street late at night, or looking or pointing at policemen, or pulling out of a parking lot when the police come into view, with nothing more, is insufficient to justify an individual’s detention. Coladanto v. State, 348 So.2d 326 (Fla.1977); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977); Stanley v. State, 327 So.2d 243 (Fla. 2d DCA 1976); Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976).

We think that the facts in this case are sufficient to satisfy the State v. Stevens test. There was specific information regarding burglaries in the area at the particular time when the defendant was found walking in the dark carrying a large box. In addition, we are impressed with minimal intrusion involved here. The police officer simply asked defendant his name and why he was so engaged. During this time the police officer observed and copied down a number off the box. No search was made and the delay was minimal. Under these circumstances, we conclude that the trial court erred in suppressing the evidence which was not seized until the defendant was later charged and arrested. The order granting suppression is thus reversed.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

BERANEK, HERSEY and WALDEN, JJ., concur.


author: WENTWORTH, Judge.

text:
    WHITE CONSTRUCTION COMPANY INC., and Limerock Industries, Inc., Appellants/Cross Appellees, v. Nathaniel DUPONT and Janey B. DuPont, his wife, Appellees/Cross Appellants.
    No. AE-294.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Dominic M. Caparello, H. Michael Mad-sen, Anne Longman, of Messer, Rhodes & Vickers, Tallahassee, for appellants/cross appellees.
    W. Dexter Douglass, of Douglass, Davey & Cooper, Tallahassee, for appellees/cross appellants.
   ON MOTION TO DISMISS CROSS APPEAL

WENTWORTH, Judge.

Appellants White Construction Company and Limerock Industries, Inc., defendants below, have moved to dismiss the cross appeal filed by appellees Nathaniel and Janey DuPont in this appeal from a final judgment for damages based on a jury verdict for plaintiffs. We grant the motion and dismiss the cross appeal.

In addition to compensatory damages of $1,025,000 for each of the DuPonts, the verdict and judgment awarded punitive damages in the amount of $1,500,000 against White and $2,000,000 against Lim-erock. Ensuing events pertinent to the motion before us are:

1. By order of May 27,1981, defendants’ post-trial motions were denied except for Limerock’s alternative motion for new trial on the issue of punitive damages, which was granted because of unreasonable economic burden based on apparent net worth “unless Plaintiffs file a remittitur in the amount of ... $1,000,000 .. . within twenty (20) days.”

2. On June 1 plaintiffs moved for disbursement of $553,602.51 deposited in the court registry by the liability carrier for White and Limerock. The motion recited plaintiffs’ contention that withdrawal of the funds “will not affect their rights on appeal” but stated that defendants “will not sign a stipulation to that effect.” The June 2 order of disbursement recited the parties’ agreement that withdrawal “shall not affect plaintiffs’ right to collect the full balance of the judgment due,” that “all defendants shall ... be credited pro tanto,” and noted defendants’ proviso that their agreement to withdrawal “shall in no way affect any rights of the parties ... to assert any other claim not herein decided.” The order did not refer to any rights on appeal, but simply granted the motion “without prejudice to the rights of all parties ... to assert any claim not herein determined.”

3.On June 12 plaintiffs served a notice of compliance with the order of May 27, stating they “hereby file a remittitur of all amounts set forth in the punitive damage verdict against ... Limerock ... in excess of One Million Dollars.” This notice also contained the following unilateral assertion: “If any defendant .... shall appeal any part of the Court’s Order ... dated May 27, 1981, the plaintiffs reserve the right to cross appeal that portion ... granting ... Remittitur.”

The parties’ arguments are presented by the motion to dismiss, response, and a reply submitted with motion for leave to file by appellants, which we grant.

We agree that the decision in Omni-Vest, Inc. v. Reichhold Chemicals, Inc., 352 So.2d 53 (Fla.1977), forecloses the cross appeal in this case by adhering to earlier decisions that when a plaintiff “formally enters a remittitur damnum in compliance with the terms of the order, he is estopped to assert and assign error in the order.” 352 So.2d at 54. That decision affirmed this court’s ruling, which noted that Dargis v. Maguire, 156 So.2d 897 (Fla.3d DCA 1963), had held that even an express order of the trial court against waiver of appeal rights “could not confer upon the plaintiff the right to appeal from the remittitur order which he voluntarily accepted.” 352 So.2d at 59. We do not, in any event, construe the above-quoted disbursement order in this case to preserve plaintiffs’ appellate rights.

Appellants correctly distinguish the decision in Ed C. Wright and Co. v. Atkins, 152 Fla. 512, 12 So.2d 296 (1943), which qualifies the waiver doctrine where a jury verdict awarded separately the sums of $3,500 principal and $1,200 interest, and remittitur was ordered and accepted only as to the interest award, upon a determination that interest was not allowable and was not properly submitted to a jury. Appellees’ reliance upon Brown v. Epstein, 208 So.2d 836 (Fla. 4th DCA 1968), is also misplaced. The funds paid by appellants’ carrier remain in controversy in this appeal, and we note that the order disbursed such funds as a partial release of all defendants pro tanto. Appel-lees have accordingly (in addition to accepting remittitur) received the benefits of the judgment to this extent, permitting application of the benefits doctrine of Brown, supra.

The cross appeal is therefore dismissed.

SHIVERS and SHAW, JJ, concur.


author: MILLS, Judge.

text:
    SHANNON MOTORS, INC., a corporation, Appellant, v. VANS & VEHICLES, INC., a corporation, Appellee.
    No. AJ-20.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    H. Leon Holbrook, III, of Blalock, Hol-brook & Akel, P.A., Jacksonville, for appellant.
    Baron L. Bartlett of Bartlett, Treece & Peper, P.A., Jacksonville, for appellee.
   MILLS, Judge.

Shannon Motors, Inc. (Shannon) appeals the trial court’s order dismissing with prejudice its complaint against Vans & Vehicles. We reverse.

This case involves a series of transactions among various parties concerning the sale of a pickup truck. Originally, pursuant to its security interest, First National Bank of Winslow (FNB) brought a replevin action against Southside Motors Company (South-side), Shannon, and Vans & Vehicles (Case No. 79-15438-CA). Southside filed a cross-claim for indemnity against Shannon; Shannon filed a cross-claim for indemnity against Vans & Vehicles. Subsequently, FNB dismissed its complaint against Shannon and Vans & Vehicles.

On 28 April 1980, the trial court dismissed Shannon’s amended cross-claim against Vans & Vehicles, but gave Shannon ten days to file a second amended cross-claim. (The court previously had dismissed Shannon’s original cross-claim with leave to amend by order of 12 March 1980.) Shannon failed to file a second amended cross-claim within the ten-day period. When the case was reached for trial on 26 August 1980, the following colloquy took place:

THE COURT: All right, then, Vans and Vehicles seems to be completely out of the picture. Let the record show that the defendant Shannon Motors, having failed to amend its cross-claim against Vans and Vehicles as provided for by the order of the 28th of April 1980, that cross-claim is considered abandoned, and Vans and Vehicles is out of this case; so that will leave only the cross-claim asserted by Southside Motors against Shannon Motors — am I correct gentlemen?
MR. RIZK: Yes, sir.
MR. MASON: Yes, sir.

The final judgment in Case No. 79-15438-CA, which awarded a judgment in favor of FNB in the replevin action and in favor of Southside on the cross-claim, contained the following language:

The entry of the Final Judgment herein and the prior order of the Court dismissing the Cross-claim filed by cross-plaintiff Shannon Motors, Inc. against the former cross-defendant, Vans & Vehicles, Inc., shall be without prejudice as to the rights of Shannon Motors, Inc. to institute any action against the former cross-defendant, Vans & Vehicles, Inc., for the matters made the subject of this action. (Emphasis added)

Subsequently, Shannon filed the instant action against Vans & Vehicles (Case No. 81-8567-CA). The trial court dismissed the complaint, ruling that in spite of the language of the final judgment in Case No. 79-15438-CA, the trial court’s oral remarks set out above constituted a dismissal with prejudice. The court reasoned that dismissal of a claim under Rule 1.420(b), Florida Rules of Civil Procedure, acts as an adjudication on the merits unless the order of dismissal otherwise specifies. The final judgment in Case No. 81-8567-CA contained the following:

Thus, when the Court by its ruling at the beginning of the trial of Case No. 79-15438-CA dismissed the cross-claim of Shannon Motors, Inc. against Vans & Vehicles without specifying at that time that the dismissal was without prejudice, such dismissal acted as an adjudication on the merits as between Shannon Motors and Vans & Vehicles.

It is from this ruling that Shannon appeals.

In Edward L. Nezelek, Inc. v. Sunbeam Television Corporation, 413 So.2d 51 (Fla. 3d DCA 1982), the Third District Court of Appeal recently faced a situation similar to the one presented here. In that case, the trial court dismissed the plaintiff’s complaint with prejudice following the plaintiff’s failure to amend its complaint within the time allowed for amendment. The defendant had moved for dismissal ex parte and the trial court dismissed the complaint without a hearing. The Third District Court reversed, holding that:

[Ojnce a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amend, that complaint may subsequently be dismissed with prejudice only if one of two notice conditions are met, (1) separate notice to plaintiff of hearing on the motion for dismissal with prejudice or entry of final judgment, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice. 413 So.2d at 54-55.

We adopt the reasoning of Nezelek and hold that neither of these two notice conditions were met in this case. The only “hearing” held on this motion to dismiss was the brief colloquy at the beginning of the trial of Case No. 79-15438-CA. Nor did the order dismissing the second amended complaint specifically provide that failure to amend within ten days would result in dismissal with prejudice.

In support of the trial court’s ruling, Vans & Vehicles relies on Lasley v. Cushing, 244 So.2d 770 (Fla. 1st DCA 1971). We find that case distinguishable. Lasley held that the trial court did not abuse its discretion in dismissing a complaint. “Discretion” is a power of free decision or latitude of choice within certain legal bounds. Webster’s New Collegiate Dictionary (8th Ed. 1981). Obviously, the trial court here did not exercise its discretion in dismissing this complaint. The court dismissed the complaint not because it wanted to, but because it felt constrained to do so under its interpretation of Rule 1.420(b).

Reversed and remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


author: PER CURIAM. SHIVERS, Judge,

text:
    Bernard BILLIE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-478.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Bernard Billie, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.

SHIVERS, J., dissents, with Written Opinion.

SHIVERS, Judge,

dissenting:

I dissent from the majority opinion holding that the retroactive application of the 1981 objective parole guidelines in this case is not a violation of the ex post facto clause. Preliminarily, two facts should be noted. First, although all of appellant’s crimes were committed prior to the enactment of the 1981 objective parole guidelines, his PPRD was computed on the basis of the 1981 guidelines. Second, the 1981 guidelines uniformly raise the matrix time ranges. In view of these facts, it is clear that the retroactive application of the 1981 guidelines in this case violates the constitutional prohibition against ex post facto laws. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982).


author: SHIVERS, Judge.

text:
    W.T. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. AK-397.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.

      Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Parker appeals his convictions and sentences for two counts of attempted second degree murder and one count of possession of a weapon by a State prisoner. We reverse.

Appellant was charged with the above offenses while incarcerated at Florida State Prison. After appellant requested the appointment of counsel, an Assistant Public Defender was appointed to represent him on these charges. Thereafter, appellant filed with the trial court a pro se motion to dismiss his court appointed counsel on the grounds that his counsel was acting in collusion with the State and was not providing him with effective representation. After the trial court refused to consider Parker’s pro se motion to dismiss, counsel for appellant filed a motion for leave to withdraw from the representation of appellant “for the reason that defendant desires to represent himself.” The motion to withdraw incorporated by reference appellant’s pro se motion to dismiss his court appointed counsel. At the hearing on the motion to withdraw, counsel for appellant again requested that the trial court discharge him from the representation of appellant because appellant “apparently wants to represent himself .... ” The trial court refused to consider appellant’s pro se motion as a request to represent himself and admonished counsel for interpreting appellant’s pro se motion as a request to represent himself and for incorporating appellant’s pro se motion in the motion to withdraw. In refusing to consider appellant’s pro se motion to dismiss, the trial court commented that

[i]f I were going to assume anything by his motion, the fair assumption would be that he wants other counsel, not that he wants to represent himself. He hasn’t even given the slightest inference of that.

Based on this interpretation of appellant’s pro se motion, the trial court denied the motion to withdraw. On the day of trial, appellant advised his attorney of the existence of several witnesses who could testify on his behalf. Since counsel for appellant had not previously interviewed these witnesses, the trial court gave him the opportunity to do so before trial. After interviewing the witnesses, counsel for appellant advised the court that he was ready to proceed to trial subject to an announcement made on the record. At that point, appellant objected pro se to his case proceeding to trial on the ground that the defense was not ready. Despite appellant’s objection, the trial was commenced. After the defense rested without having presented any evidence or testimony, the jury returned verdicts of guilty as charged. On appeal, appellant contends that the trial court violated his right to self-representation and right to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Florida Constitution.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth District Court of Appeal set forth the procedures which a trial court should follow when a defendant requests the discharge of his court appointed counsel before the commencement of trial. There, the court held that:

... where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

In Nelson, the trial court failed to follow this procedure after the defendant moved to discharge his court appointed counsel before the commencement of trial. Based on this failure by the trial court, the court found that Nelson’s right to counsel was not adequately protected and, therefore, quashed the trial court’s order denying Nelson’s motion to vacate his conviction.

Here, as in Nelson, the trial court failed to adequately protect the defendant’s right to counsel. Appellant clearly and unequivocally requested the trial court to discharge his court appointed counsel on the ground that counsel was not rendering effective assistance of counsel. Despite this request, the trial court not only failed to conduct an inquiry to determine whether there was a reasonable basis for appellant’s claim, it refused to even consider appellant’s pro se motion. The trial court should have followed the procedure set forth in Nelson and conducted an evidentiary hearing to determine whether there was a reasonable cause to believe that appellant’s court appointed counsel was not rendering effective assistance. Having failed to conduct such an evidentiary hearing, we believe that the trial court failed to adequately protect appellant’s constitutional right to counsel and, therefore, appellant’s convictions must be reversed and the cause remanded to the trial court for a new trial. See Nelson v. State, supra.

Furthermore, we believe that appellant’s convictions must also be reversed on the ground that the trial court denied him his right to self-representation. There is no question that a defendant has the right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Goode v. State, 365 So.2d 381 (Fla.1978); State v. Cappetta, 216 So.2d 749 (Fla.1968). In the absence of unusual circumstances, an accused who is mentally competent has the right to conduct his own defense without counsel. State v. Cappetta, supra. However, in order “[t]o invoke this right the criminal defendant must make an unequivocal request to act as his own lawyer. Such request must be made prior to the commencement of trial.” Id., at 918. Upon receiving a timely motion to proceed pro se, Faretta places the duty on the trial court to make the defendant aware of the benefits he must relinquish and the dangers and disadvantages of self-representation. Thereafter, the trial court must determine whether the defendant has made his choice voluntarily and intelligently. Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982). The State contends that the trial court did not have a duty to apprise appellant of the dangers and disadvantages of self-representation and to determine whether his decision to proceed pro se was made voluntarily and intelligently because appellant never affirmatively requested to represent himself. We disagree.

That appellant made an unequivocal request to act as his own lawyer is evidenced by the fact that the motion to withdraw filed by counsel for appellant expressly requested the trial court to allow counsel permission to withdraw from the representation of appellant “for the reason that defendant [Parker] desires to represent himself.” In addition, counsel for appellant informed the trial court of appellant’s desire to represent himself at the hearing on the motion to withdraw. Based on these facts, we believe that appellant sufficiently invoked his right to proceed pro se and that the trial court should have conducted an inquiry to determine whether he was aware of the dangers and disadvantages of self-representation as well as whether his choice of self-representation was voluntarily and intelligently made. Williams v. State, 337 So.2d 846 (Fla. 2d DCA 1976). By failing to conduct such an inquiry and forcing appellant to proceed to trial with counsel he believed to be ineffective, we believe that the trial court effectively denied appellant his constitutional right to represent himself. This fact alone is sufficient grounds for reversing appellant’s convictions.

For the reasons stated above, we reverse appellant’s convictions and sentences and remand the matter to the trial court for a new trial.

REVERSED and REMANDED.

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


text:
    William Robert GOIN, a minor By and Through his natural parents, William A. GOIN and Elizabeth P. Goin, his wife, and William A. Goin and Elizabeth P. Goin, in their individual capacities, Appellants, v. AUTO-OWNERS INSURANCE CO., Appellee.
    No. AK-400.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.

      Roy Lewis, Jacksonville, for appellants.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellee.
   MILLS, Judge.

In this personal injury suit, the trial court granted summary judgment in favor of Auto-Owners. The trial court held that William Robert Goin could not recover under an insurance policy issued by Auto-Owners because of the “family exclusion” clause contained in the policy. We affirm.

The Goins filed a complaint against Robert Ackery, Allstate Insurance Company, and Auto-Owners in connection with a boating accident in which William Robert Goin sustained bodily injuries as a result of the alleged negligence of Robert Ackery.

William A. Goin, father of the injured plaintiff, owned an “outboard floater policy” issued by Auto-Owners. The Goins alleged in their complaint that William Robert Goin was entitled to recover under that policy.

The policy contains clear and unambiguous language to the effect that the named insured, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of an insured are not covered by the policy.

The Goins make two arguments on appeal. First, they contend that this “family exclusion” clause violates the public policy of this state. “Family exclusion” clauses in automobile insurance policies, absent some statutory prohibition, are clearly valid. Reid v. State Farm, Fire and Casualty Co., 352 So.2d 1172 (Fla.1978); Florida Farm Bureau Insurance Co. v. Government Employees Insurance Co., 387 So.2d 932 (Fla.1980). However, the Goins argue that these cases are inapplicable because automobile owners are required to have no-fault insurance. § 627.733, Florida Statutes (1981). This argument is based on a misreading of Reid. In that case, the Florida Supreme Court held that the legislature did not prohibit family-household exclusions in automobile liability insurance policies by its enactment of the Florida Automobile Reparations Reform Act, section 627.730, et seq., Florida Statutes (1981). Given that holding, we fail to see how the absence of no-fault provisions with regard to boats could amount to a prohibition of the “family exclusion” clause.

The Goins also contend that failure to allow recovery under the policy would violate their right of access to the courts. Article I, Section 21, Florida Constitution. That argument is clearly without merit since they are free to pursue their rights against the other two defendants.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    Marilyn B. ZOLL, Appellant, v. KENTUCKY FRIED CHICKEN and Pacific Employers Insurance Company, Appellees.
    No. AL-10.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.

      Raymond A. Haas of Haas, Boehm, Brown & Ridgon, P.A., Daytona Beach, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellees.
   MILLS, Judge.

Zoll appeals a compensation order denying her claim for wage-loss benefits and attorney’s fees. We affirm.

Existence of permanent impairment within the AMA Guides is required for Zoll’s injury. Paradise Fruit Company v. Floyd,-So.2d-(Fla. 1st DCA 1982) [7 FLW 1899]. Compare Racz v. Chennault, Inc., 418 So.2d 413 (Fla. 1st DCA 1982) (remand for evidence applying Guides to psychiatric disability).

The facts of this case do not require a finding of bad faith within the meaning of Section 440.34, Florida Statutes (1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    Gladys M. HEROUT, Appellant, v. Freeman D. LAWRENCE, Appellee.
    No. AL-44.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    As Corrected Feb. 16, 1983.
    David G. White, Thomasville, Ga., for appellant.
    Anthony J. Bajoczky and Albert Craig Penson of Barrett, Bajoczky & Barrett, Tallahassee, for appellee.
   MILLS, Judge.

Herout appeals the trial court’s grant of summary judgment in favor of Lawrence, the defendant in this paternity suit. We affirm.

Herout was married to Harold Jackson at the time of the conception and birth of her son, Lawrence Jackson. On 27 September 1967, Herout filed a petition for divorce from Harold Jackson, alleging that Lawrence Jackson was one of the children of the marriage and praying that Harold Jackson be ordered to pay child support. On 4 December 1967, the trial court granted a divorce to the parties and entered an order of child support for Lawrence Jackson.

On 14 October 1981, Herout filed this paternity action against Freeman D. Lawrence, alleging that he is the real father of Lawrence Jackson. The complaint prayed that “the issue of support be tried by the court and that the court order the Defendant to pay support from the birth of the child to age 18.” At the time this action was filed, Lawrence Jackson was 19 years old. The trial court granted Lawrence’s motion for summary judgment on the grounds that Herout was estopped from now denying the legitimacy of her son and that she was not the proper party plaintiff since her son had already reached the age of majority.

Formerly, a woman was not allowed to bring a paternity action against one other than her spouse when she was married at the time the child was conceived. Kennelly v. Davis, 221 So.2d 415 (Fla.1969); Smith v. Wise, 234 So.2d 145 (Fla. 3d DCA 1970). However, in Gammon v. Cobb, 335 So.2d 261 (Fla.1976), the Florida Supreme Court receded from Kennelly and allowed a married woman to sue for support benefits for her illegitimate child. Thus, it is clear that Herout is not precluded as a matter of law from bringing this action simply because she was married at the time of the conception and birth of her son.

However, this case presents a situation different than the one addressed in Gammon or in any of the cases decided since then. Here, the plaintiff previously alleged that her ex-spouse was the father of her son and obtained a court order to that effect. She now seeks to deny her former position by alleging that Lawrence is the natural father of her son. This she may not do. A party may not accept the benefits of a judgment and then later be heard to deny its validity. Rouse v. Rouse, 219 La. 1065, 55 So.2d 246 (1951); Davis v. Davis, 229 Ind. 414, 99 N.E.2d 77 (1951). Herout presumably accepted the benefits of the prior order of child support for almost fourteen years. As a matter of equity, she may not now challenge the validity of that former decree.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    L.J. McCRAY, Appellant, v. Wilbur G. MURRAY and Jeannette Murray, his wife, Appellees.
    No. AM-218.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.

      S.Austin Peele of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    James J. Taylor, Jr., of Wahl & Gabel, Jacksonville, for appellees.
   MILLS, Judge.

McCray, defendant below, asserts that the trial court improperly instructed the jury on the issue of damages in this breach of contract case and that he should be granted a new trial on that issue. We disagree and affirm.

In 1972, Murray entered into an oral contract with McCray whereby McCray was to construct a fish pond on Murray’s property. In return for constructing the pond, McCray was to receive the dirt from the excavation which he could then resell at a profit to some third party. The pond was to be 240 feet by 230 feet by 8 feet, the sides were to be sloped, and a berm (a narrow lip at the top of the pond to prevent erosion) was to be built. Additionally, the bottom was to be lined with clay to help insure that the pond held water. According to Murray, McCray dug the hole and hauled away the dirt but did none of the other things. Murray subsequently brought suit, alleging breach of contract, unjust enrichment, and unlawful conversion.

At trial, Murray testified that the hole left on his property measured approximately 240 feet by 230 feet by 8 feet and that approximately 16,300 cubic yards of soil had been removed at the time McCray removed his equipment from the site. McCray testified that he was charging $1.25 to $1.50 per cubic yard for soil that he sold in 1972.

At the close of all the evidence, the trial court instructed the jury that “[i]f you find that L.J. McCray, as part of his contract with Wilbur Murray, agreed to do all the necessary construction to build a fish pond for Wilbur Murray, and that L.J. McCray totally breached that contract, your verdict should be for Wilbur and Jeannette Murray, the plaintiffs, in the amount which will allow them to restore their property to the condition it was before the contract was made.” Thereafter, the jury returned a verdict for the plaintiffs in the amount of $20,000.

McCray asserts that this instruction was improper and that the jury should have been instructed in accordance with the measure of damages set forth in Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982). In Grossman, the Florida Supreme Court adopted subsection 346(l)(a) of the Restatement (First) of Contracts (1932) as the proper measure of damages in eases involving the breach of a construction contract. Stated simply, that subsection says that, depending upon whether completion of the construction would involve economic waste, the proper measure of damages is either the cost of completion or the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff. McCray’s assertion of error is without merit because, in addition to the instruction quoted above, the jury was instructed that “[t]he measure of damages for breach of contract when a contractor fails to complete the improvement in accordance with his contract is the costs to the plaintiff in correcting the defect or completing omissions of the defendant.” We hold that this instruction complied with the requirements of Grossman.

There was evidence from which the jury could have found that this case involved a total breach of contract as opposed to a partial breach. In eases of total breach, the plaintiff is entitled to an election of remedies. He may “treat the contract as void and seek those damages which will put him in the same position as he was immediately prior to making the agreement. His alternative is to affirm the contract, insist on the benefit of his bargain, and seek those damages which will place him in the position he would have been if the contract had been completely performed.” Sundie v. Lindsay, 166 So.2d 152, 153 (Fla. 3d DCA 1964). There was therefore no error in awarding Murray the cost of restoring his property to its original condition.

McCray’s remaining contention is also without merit. There was sufficient evidence from which the jury properly could have found that the cost of restoring Murray’s property to its original condition at the time of the breach was $20,000.

AFFIRMED.

ROBERT L. SMITH, Jr., C.J., and McCORD, J., concur.


author: WIGGINTON, Judge.

text:
    Tommy Jay WARD, Appellant, v. STATE of Florida, Appellee.
    No. AO-113.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Tommy Jay Ward, pro se.
    No appearance for appellee.
   WIGGINTON, Judge.

Ward appeals the trial court’s oral denial, after an evidentiary hearing, of his motion for post-conviction relief, Rule 3.850, Florida Rules of Criminal Procedure. Because there was no written order filed denying said motion, we remand this cause to the trial court with instructions to enter a written order consistent with the requirements of Rule 3.850, Florida Rules of Criminal Procedure.

REVERSED AND REMANDED.

SHAW and JOANOS, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Jeffrey SHORT, Appellant, v. STATE of Florida, Appellee.
    No. 82-122.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Alexander Anthony Renné, Naples, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Jeffrey Short, was convicted of two counts of aggravated battery, burglary of a conveyance, and grand theft.

The appellant has raised several arguments on appeal, but we only find merit in his contention that the trial court erred in adjudicating him guilty and sentencing him on both counts of aggravated battery.

When pronouncing sentence, the court properly sentenced the appellant on only one of the two aggravated battery counts. However, the written judgment and sentence reflects a sentence of ten years imprisonment on each of the aggravated battery charges, five years for burglary of a conveyance, and five years for grand theft. All four sentences are to be served concurrently.

Even though the jury found the appellant guilty of two counts of aggravated battery, one under section 784.045(l)(a) and the other under section 784.045(l)(b), Florida Statutes (1979), the appellant only committed one battery, and accordingly, the court should have adjudicated and sentenced him on only one count. Llanos v. State, 401 So.2d 848 (Fla. 5th DCA 1981).

Since the trial court in pronouncing sentence did not announce which count he was sentencing the defendant under, we remand to the trial court with directions to set aside the adjudication and sentence on one of the counts of aggravated battery.

We affirm the trial court in all other respects.

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


text:
    Joe Willis HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. AI-462.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.

      Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Holley appeals his conviction for battery of a law enforcement officer. He argues that the trial court erroneously refused to instruct the jury on the theory of his defense. We agree, and therefore reverse and remand.

Holley, defendant below, was accused of beating Joseph Lazenby, a correctional officer at Union Correctional Institution. At trial, Lazenby and Holley offered widely different versions of the incident. Lazenby testified that he was supervising the feeding of the southwest unit, which was understaffed due to an incident occurring elsewhere in the prison. Holley was walking in the line with a bowl of cake in his hands, which was against the rules. Lazenby stated he told Holley to put the cake back and Holley agreed, but that when Lazenby turned his back Holley jumped over the rail and tried to punch him. Lazenby, who was hit on the side of the face, grabbed Holley, pushed him over a table and tried to handcuff him. At this point, Lazenby stated he was hit in the back by an unknown assailant. According to Lazenby, Holley used this opportunity to pick Lazenby up, throw him over the rail and begin kicking him. Lazenby also testified that some of the 150 to 200 inmates in the area at the time of the incident took part in this fight, but that he couldn’t tell who they were because they were to his back. Finally, other officers made their way through the crowd to assist Lazenby and end the incident. Lazenby denied striking or slapping Holley other than in trying to put handcuffs on him. Another correctional officer, John Jacobson, basically corroborated Lazenby’s testimony. Jacobson, however, did not observe the entire incident and, apparently, did not observe the critical moments before the fight began.

Holley testified that the incident occurred on his birthday. Another inmate gave Holley two pieces of cake in a bowl and as he walked through the line Lazenby came up and told him to put the cake back. Holley stated that when he protested, Lazenby swung at him and struck him. The two men then “locked up” across the rail and began to wrestle. Holley testified that Lazenby continued to hit him until other officers came in and broke up the fight. Holley testified that he made no aggressive movements toward Lazenby until Lazenby hit him. Four other inmates of Union Correctional Institution testified and basically corroborated the testimony of the defendant, Holley.

In his closing statement to the jury, defense counsel argued that Officer Lazenby was not engaged in the performance of a legal duty in that he precipitated the alleged battery by slapping the defendant without provocation. Counsel also contended that since Lazenby started the fight, the defendant was acting in self-defense. Defense counsel had requested that the trial court give the standard jury instruction on self-defense, and had also submitted a written request for a special jury instruction. The special instruction stated that if the jury found that Lazenby struck the defendant before he was struck or threatened by the defendant, then Lazenby was not engaged in a lawful execution of a legal duty, which is an essential element of the offense of battery of a law enforcement officer. The trial court declined to give either instruction.

It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense if there is evidence in the record to support it. Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). In the instant case there is much testimony in the record that defendant Holley was struck first. From this testimony, the jury could have concluded that Holley was acting in self-defense. A defendant is entitled to his requested self-defense instruction regardless of how weak or improbable his testimony may have been with respect to the circumstances leading up to the battery. Taylor v. State, 410 So.2d 1358 (Fla. 1st DCA 1982). A person is entitled to defend himself against unlawful or excessive force even when being arrested. Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982). Appellee’s reliance on the testimony of state witnesses, while apparently ignoring in testimony of defense witnesses, to conclude that there is no evidence in the record to support a theory of self-defense is wrong.

The real question here, is whether appellant properly requested the self-defense instruction, and therefore, whether the question is properly preserved for review. Defense counsel submitted a written request for special instructions and also orally requested the standard jury instruction on self-defense. The defense fully complied with Fla.R.Crim.P. 3.390(d) in that defense counsel objected to the court’s refusal to give his instruction before the jury retired to consider its verdict, and counsel stated distinctly the matter to which he objected and the grounds of his objection. While defense counsel’s requested jury instructions numbers 1 and 2 were made a part of the trial record, the Florida standard jury instruction on self-defense, Fla. Std.Jury Instr. (Crim) 3.04(d), was not made a part of this record. Fla.R.Crim.P. 3.390(c) states that any party may “file written requests” that the court instruct the jury on the law as set forth in the request. We are aware that there is obiter dictum in the case of Taylor v. State, 410 So.2d 1358 (Fla. 1st DCA 1982), which states that failure to include a written request for a jury instruction may preclude appellate review under Rule 3.390(c). Id. at 1359-60. We hold, however, that the requirement of written jury instructions is inapplicable when a Florida standard jury instruction is requested on the record. The reason for requiring filed, written requests for instructions is clear in the case of special, nonstandard jury instructions. Without the text of the request itself in the record there would be nothing to review. Florida standard jury instructions, however, are already written, well known by all judges and lawyers, and in a form of which judicial notice can be taken. The rationale of requiring written instructions to be filed, therefore, should not apply to standard instructions. Furthermore, Rule 3.390(c) does not explicitly state that failure to comply with its written and filed requirement is fatal to an appeal. This is in marked contrast to Rule 3.390(d) which states “No party may assign as error grounds of appeal the giving or failure to give an instruction unless.... ” Since in the case sub judice the defendant properly requested the standard jury instruction on self-defense, and since there was evidence in the record to support that instruction, it was error for the trial court to refuse to give it. On this record we cannot say that the error is harmless.

Appellant’s further contention that the trial court erred in refusing to give defendant’s special instruction number 1 is flawed by the fact that special instruction number 1 is not a correct statement of the law. Requested instruction number 1 appears to assume as a matter of law that if Officer Lazenby struck the defendant first, then he used excessive force and therefore was not engaged in the lawful execution of a legal duty. Whether Lazenby’s striking of the defendant first would constitute an excessive use of force, however, was a question for the jury. Cf. City of Fort Pierce v. Cooper, 190 So.2d 12 (Fla. 4th DCA 1966). Therefore, the trial court did not err in refusing to give this instruction.

The judgment below is REVERSED and the cause REMANDED for a new trial.

ROBERT L. SMITH, Jr., C.J., and THOMPSON, J., concur.


text:
    Danna ROBINSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-226.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Danna Robinson, pro se.
    Enoch J. Whitney, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Appellee’s motion to dismiss is denied. The action of the Florida Parole and Probation Commission is affirmed.

SHAW, JOANOS and WIGGINTON, JJ., concur.


text:
    CITY OF MIAMI, Appellant, v. Diane GRENKA, Appellee.
    No. AK-369.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.

      Thomas W. Conroy of Conroy & Simberg, P.A., Hollywood, for appellant.
    Ronnie K. Witlin of Witlin & Witlin, Miami, for appellee.
   MILLS, Judge.

The employer appeals a compensation order requiring payment of temporary total disability (TTD), medical bills, penalties, costs, attorneys’ fees and nursing services. We affirm.

There is competent substantial evidence of a causal connection between Gren-ka’s current problems and her industrial accident. The employer asserts that the problems were caused by an intentional drug overdose. Grenka denies having taken drugs. The trier of fact may have believed this and we will not second guess him.

Dr. Nagaswami testified to Grenka’s inability to care for herself and her need for constant help. This is adequate medical evidence of an inability to return to work, although conceivably there exists some form of gainful employment for Grenka. The award of TTD until the date of hearing is affirmed. Of course, should the claimant improve medically so that she is able to work, a work search will be required before further entitlement to TTD. The order is modified to award TTD until MMI or such time as the claimant is able to return to work, whichever comes first. Tavares Grove Care v. Simmons, 417 So.2d 1175 (Fla. 1st DCA 1982); Willard Kaufman Company v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982).

There is competent substantial evidence that Grenka was considered an employee by her husband’s business, that this was not self-employment, and that Grenka received a benefit of $200 weekly. Concurrent employment within Section 440.-14(l)(a), Florida Statutes (1981), was established.

The entitlement to nursing services is supported by Dr. Nagaswami’s testimony, Coca-Cola Company v. Long, 420 So.2d 900 (Fla. 1st DCA 1982).

AFFIRMED.

ROBERT L. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    Kipp S. SCHOENWALD, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-371.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Kipp S. Schoenwald, pro se.

      John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Orlando, for appellee.
   PER CURIAM.

Appellee’s motion to quash is denied. The action of the Florida Parole and Probation Commission is affirmed.

SHAW, JOANOS and WIGGINTON, JJ., concur.


text:
    Vinnie CORNELIUS, Appellant, v. SUNSET GOLF COURSE and Aetna Life and Casualty and Cosmopolitan Mutual Insurance Company, Appellees.
    No. ZZ-381.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.

      Brian S. Henry, of Atkinson, Golden, Ba-cen & Dinner, Hollywood, for appellant.
    R. Fred Lewis, of Magill, Reid, Kuvin & Lewis, Miami, for appellees.
   SHIVERS, Judge.

Cornelius appeals the final order of the deputy commissioner which denies appellant workers’ compensation. We agree with appellant that the deputy commissioner erred in allowing Cornelius, an incompetent, to conduct the final hearing pro se. We therefore reverse and remand for a new hearing.

Cornelius, claimant below, began working part-time at Sunset Golf Course in 1968 as a greenskeeper’s assistant. Cornelius’ duties included spraying various insecticides and fungicides. Sometime in the summer of 1977 Cornelius was spraying diquat, a strong weed killer, when the nozzle leading from the compressor tank to the hose became clogged. As Cornelius attempted to unclog the nozzle, the spout broke off causing a large quantity of the diquat to be sprayed directly into his face, including his nose and mouth. Although the claimant did not see a physician at that time, he became very frightened, fearing that he would have problems resulting from the exposure.

In the fall of 1977, Cornelius began experiencing both physical and mental problems. He complained of itching, swelling, rash about his body, hair loss, sleep disturbance, and various allergies. In February of 1978 claimant was admitted to Memorial Hospital in Hollywood for psychiatric care and treatment. At that time, claimant was seen by Dr. Akomer who diagnosed Cornelius as a paranoid schizophrenic. Cornelius left the hospital after two days, against medical advice, and returned to work at Sunset Golf Course. In October 1978, he ceased employment at the golf course due to mental and physical problems. In December 1978, Cornelius began work at a dog track and continued work there until he was hospitalized in March of 1979, at which time he was again diagnosed as schizophrenic. During this entire period of time Cornelius was being treated by Dr. Bot-knecht for his allergies. Dr. Botknecht, noticing claimant’s mental problems, eventually referred him to Dr. Howard Israel, a psychologist.

In January of 1979, Cornelius filed a workers’ compensation claim. At that time he was represented by an attorney, Emil Jaczynski. In June of 1979, Cornelius was seen by Dr. David Taubel, a psychiatrist. Dr. Taubel also diagnosed Cornelius as a paranoid schizophrenic. Although Dr. Israel, the psychologist, believed that Cornelius’ psychological problems were attributable to the traumatic effects of the diquat spraying incident in 1977, Dr. Taubel, the psychiatrist, believed that heredity was the cause of claimant’s disease. Dr. Taubel had previously treated Cornelius’ brother who also was diagnosed as a paranoid schizophrenic.

In November of 1979, claimant’s attorney was permitted to withdraw by the deputy commissioner. A hearing on the merits of the case was set for April 7, 1980, but one carrier, Cosmopolitan, moved the deputy commissioner for an order finding the claimant mentally incompetent. On March 27, 1980, the deputy commissioner entered his order declaring Cornelius mentally incompetent and appointing his mother, Florene Cornelius, to act as his guardian. At the hearing on April 7, 1980, Cornelius and his mother appeared as did lawyers for the two insurance carriers involved. Although Cornelius desired the services of an attorney, he was unable to find a lawyer to take his case. The deputy commissioner offered to continue the case in order to enable Cornelius to obtain an attorney, but Cornelius indicated that he wanted to go ahead and get the hearing over with. At the suggestion of opposing counsel, the deputy commissioner also inquired of claimant’s “guardian” if she were prepared to proceed. When she replied in the affirmative, the deputy commissioner allowed Cornelius to proceed pro se. Following the hearing the deputy commissioner entered the order appealed from which found that claimant’s diseases were not related to any incident of chemical exposure during his employment at Sunset Golf Course, but rather, that Cornelius’ problems were of genetic origin.

Section 440.17, Florida Statutes (1981), provides that a deputy commissioner may require the appointment by a court of competent jurisdiction of a guardian for any person who is mentally incompetent or a minor. To require the appointment of a guardian is purely within the discretion of the deputy commissioner. Allure Shoe Corp. v. Lymberis, 173 So.2d 702 (Fla.1965). However, once it has been determined that a claimant is mentally incompetent, to decide his case without any presentation on his behalf either by a guardian or by counsel departs from the essential requirements of law. See Aris v. Big Ten Taxi Corp., 330 So.2d 465 (Fla.1976). On the facts of the instant case, it was an abuse of discretion to not require the appointment of a guardian under section 440.17. The record in the case at bar clearly reveals that Cornelius did desire to be represented by an attorney but that he was unable to obtain the services of one. The record also revealed that Cornelius eschewed the deputy commissioner’s offer of a continuance not out of a lack of desire for an attorney, but because Cornelius desired to get his ordeal over with. Cornelius, a man diagnosed schizophrenic by at least two psychiatrists and a psychologist, and who was declared incompetent by the deputy commissioner on March 27,1980, was allowed by that same deputy commissioner to call and examine witnesses, present evidence, and argue his case on April 7, 1980.

Infants and incompetents are wards of the court, and courts have the duty and obligation to preserve and protect the ward’s interest. Turner v. Andrews, 143 Fla. 88, 196 So. 499 (Fla.1940). This rule applies to appellate courts as well as trial courts, and in the case of incompetents, reviewing courts will even hear arguments asserted for the first time on appeal. Trethewey v. Trethewey, 115 So.2d 712 (Fla. 2d DCA 1959). Furthermore, a guardian ad litem cannot bind an incompetent by admission or waiver, and the courts must protect the incompetent’s interest notwithstanding the failure of a guardian ad litem to do so. Mote v. Morton, 52 Fla. 548, 41 So. 607 (Fla.1906). This is particularly true in workers’ compensation cases where the law is to be liberally construed in favor of the claimant. We therefore hold that the deputy commissioner departed from the essential requirements of law in allowing the incompetent claimant to conduct the claims hearing pro se. See Aris, supra; Bailey’s Auto Service v. Mitchell, 85 So.2d 228 (Fla.1956). Having found Cornelius to be incompetent, the deputy commissioner should have either required the appointment of a guardian by a court of competent jurisdiction as provided by section 440.17, Florida Statutes, or insured that the incompetent claimant was represented by attorney as was his desire.

Accordingly, the final order below is REVERSED and this cause REMANDED for proceedings not inconsistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.

      . We are unaware of any authority in a deputy commissioner to appoint a guardian or guardian ad litem. Section 440.17, Florida Statutes (1981), provides that a deputy commissioner “may require the appointment [of a guardian] by a court of competent jurisdiction (emphasis added). Peppard v. Peppard, 198 So.2d 68 (Fla. 3d DCA 1967), states that the appointment of a guardian ad litem by a circuit court needs no specific statutory authority because of the inherent equitable powers of the circuit court. In the case at bar we find it unnecessary to decide whether a deputy commissioner has such power since here the “guardian” took no part in the hearing other than to accede to it taking place. Where the hearing is conducted by the incompetent “ward” it is irrelevant whether the “guardian” is properly appointed.

      . We do not imply that a deputy commissioner has the authority to appoint counsel for an incompetent claimant.


text:
    Patrick STAFFORD, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-354.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Channing E. Brackey of Brackey & Fink-elstein, P.A., Fort Lauderdale, for appellant.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Appellee having complied with this Court’s order on Motion for Rehearing granted dated 8 November 1982, the Court’s opinion of 20 September 1982 is vacated and the corrected order of the appellee is affirmed.

McCORD and MILLS, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


text:
    Joe TROY, Appellant, v. STATE of Florida, Appellee.
    No. AJ-332.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982).

McCORD, ERVIN and JOANOS, JJ., concur.


author: McCORD, Judge.

text:
    CITY OF TAMPA, Appellant, v. Buddy W. MORALES, Appellee.
    No. AK-478.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Joseph G. Spicola, Jr., City Atty., and Stephen M. Barbas, Asst. City Atty., for appellant.
    Bruce A. Campbell of Melendi & Campbell, Tampa, for appellee.
   McCORD, Judge.

Appellant, employer, appeals the deputy commissioner’s order granting appellee’s petition for modification based on a change in condition and directing appellant to pay costs and appellee’s attorney’s fees. We reverse.

The deputy commissioner relied upon the testimony of Dr. Peter B. Dunne in reaching his conclusion that appellee had suffered a change in condition sufficient to support a modification. He thereupon changed appellee’s permanent disability rating from 18 percent to 20 percent. Appellant had already paid permanent disability benefits in excess of 20 percent. Therefore, no further compensation was due as a result of the modification.

Dr. Dunn’s testimony does not support a finding that there has been a substantial change in condition that was not anticipated at the time of the original diagnosis. In his testimony, Dr. Dunne stated several times that appellee’s condition had not substantially changed and that at the time of the original diagnosis, he knew that the changes that had occurred very possibly would occur. Compare General Electric Company v. Osborne, 394 So.2d 1089 (Fla. 1st DCA 1981), in which the court stated:

The change of condition provision [Section 440.28, Florida Statutes] is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding. (Citations omitted.)

Because no substantial change in condition was proven, the award of attorney’s fees and costs is also reversed.

REVERSED.

BOOTH and WENTWORTH JJ., concur.


text:
    C.W. McDANIEL, Appellant, v. Robert ZOLDAK and Bay Front Development Co., Inc., Appellees.
    No. AL-18.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    James B. Fensom, of Barron, Redding, Boggs, Hughes, Fite & Bassett, Panama City, for appellant.
    Bert A. Davenport, Panama City, for ap-pellees.
   WENTWORTH, Judge.

Appellant seeks review of an order granting appellees’ motion for directed verdict; we conclude that the motion was improperly granted and we reverse the order appealed.

Appellant brought an action against ap-pellees, alleging that appellees had diverted the natural flow of surface water across appellant’s property. After appellant’s evidence was presented appellees moved for directed verdict; the trial judge granted the motion, finding that the natural flow of water had been diverted but that appellant’s property retained an “escape point” for the dispersal of surface water. However, the evidentiary exhibits and testimony present a factual dispute as to whether appellees’ alterations to their land have caused an increase in the amount of standing water which must accumulate on appellant’s property before the overflow begins to disperse through the “escape point.” Where the evidence presents such a disputed issue of material fact a motion for directed verdict should not be granted. See e.g., Gates v. Chrysler Corp., 397 So.2d 1187 (Fla. 4th DCA 1981).

Accordingly, the order granting a directed verdict is reversed and the cause is remanded for further proceedings.

BOOTH and THOMPSON, JJ., concur.


text:
    Kenneth Charles SIDMAN, Appellant, v. Raghild Sidonia Kriehuber SIDMAN, Appellee.
    No. AL-317.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Sandra Bieber, Gainesville, for appellant.
    Zelda Hawk of Sieg, Comfort, Hawk, La-Croix & Reid, Gainesville, for appellee.
   PER CURIAM.

We find no merit in the three points raised by the appellant/husband in his appeal and therefore affirm them. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). As to the wife’s cross appeal, we agree with the point raised and reverse. Appellee/wife contends that the trial court erred in failing to award the exclusive use and possession of the marital home to her until the children reach majority. Because both parties agree that the trial court’s final judgment should have awarded exclusive use and possession of the marital home to the wife until the children reach their majority, or the wife remarries, we reverse and remand the cause to the trial court with directions that the final judgment be modified by the entry of such award. In view of our remand in this regard, the lower court may, in its discretion, wish to revisit that portion of the final judgment directing both parties to be responsible for one-half the payments of the mortgage, taxes and insurance applicable to the marital home, and determine from its review of all the financial resources of both parties, whether the wife alone should be so responsible.

REVERSED and REMANDED for further consistent proceedings.

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


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    FLORIDA SCHOOL FOR BOYS and Division of Risk Management, Appellants, v. Lantis STRICKLAND, Appellee.
    No. AL-396.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.

      James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for appellants.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellee.
   THOMPSON, Judge.

The employer/servicing division (E/SD) appeal an order of the deputy commissioner (deputy) awarding claimant temporary total disability (TTD) from January 7, 1981, and continuing until the end of this class of disability. The E/SD contend the deputy erred in awarding claimant TTD for that period. We reverse in part and affirm in part.

The claimant sustained a compensable accident to his back on January 22,1980. The E/SD paid TTD benefits from January 31, 1980 through January 7,1981, and accepted a 10% permanent partial disability (PPD) rating.

Prior to January 7, 1981, the claimant was told by his attending physician, Dr. Diaz, that he could return to a sedentary job in which he could periodically get up and move around. Dr. Diaz said that claimant should not lift over 10 to 15 pounds, and should not sit nor stand in one position for more than 20 to 30 minutes. When Dr. Ford saw claimant on February 9, 1981, he also felt claimant could return to some clerical or administrative type job. Therefore, according to the medical evidence the claimant was capable of limited work from January 7, 1981 to May 29, 1981. However, the claimant did not make an adequate job search from the time he was told he could return to limited employment until May 29, 1981, when his then treating physician, Dr. Ford, said he was unable to work. In the absence of a conscientious work search, the claimant’s complaint that he did not feel capable of working is not a sufficient basis to award TTD benefits during this period. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981).

There is competent substantial evidence to support the deputy’s award of TTD from May 29, 1981, and continuing to the end of that class of disability. We find no error in the award of penalties and interest on the TTD benefits affirmed, and in the reservation of jurisdiction for the purpose of determining entitlement to attorney’s fees and costs.

The award of TTD from January 7, 1981 to May 29, 1981, is reversed, otherwise the order appealed from is affirmed.

BOOTH, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting in part.

I would affirm in all respects because I find no patent evidentiary deficiency for the deputy’s evaluation of medical and lay testimony as to claimant’s physical capacities during the period in question. The physician’s opinion as to light work capacity, even assuming clear communication to claimant, did not usurp the deputy’s obligation to decide the temporary physical disability issue based on all the evidence before him, including the doctor’s concurrent instruction that “if he was having enough symptoms, of course he was told he should lay down.”


text:
    Marilyn Joyce KOHN, Appellant, v. Emmett Lee KOHN, Appellee.
    No. AL-447.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1982.
    Wayne E. Flowers, Jacksonville, for appellant.
    Alexander G. Smith of Smith & Smith, Jacksonville, for appellee.
   PER CURIAM.

In this dissolution of marriage action, the wife contends that the trial court erred in not awarding her the exclusive use and possession of the marital home until the parties’ minor child reaches majority. In light of the extensive joint debts of the parties, we find that the trial court did not abuse its discretion in concluding that, because the parties could not afford to keep the marital home, it should be sold. We therefore affirm that point. We find merit however with the wife’s contention that she should receive a credit for the husband’s share of the ownership expenses of the marital home which she was ordered to pay until the home is sold. The law is clear that

[a] wife who pays all of the mortgage, taxes, insurance, and expenses of jointly-owned property is entitled to credit against the husband’s one-half of the proceeds upon the sale of the property.... It is impermissible to require the wife to increase the equity of the husband by her own payments .... The wife here is entitled to either credit or is entitled to have the husband pay one-half of the expenses.

Rubino v. Rubino, 372 So.2d 539, 540 (Fla. 1st DCA 1979). Such credit is not limited only to payments of principal as the husband suggests but applies to “all the ownership expenses on jointly-owned property.” Smith v. Smith, 390 So.2d 1223, 1224 (Fla. 1st DCA 1980).

We therefore reverse that portion of the final judgment, providing that the wife is to receive no credit, and direct that the judgment be amended to provide that upon the sale of the marital home the wife shall be entitled to a credit against the husband’s one-half of the sale proceeds because of her payment of the ownership expenses on the marital home.

AFFIRMED in part, REVERSED in part.

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


author: HOBSON, Judge.

text:
    David Russell RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-2555.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr. and Paul C. Helm, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

David Russell Riley appeals four sentences imposed for convictions in four cases (circuit court Nos. 79-2250, 79-3215, 79-3216 and 80-3298) on the ground that the trial court erred at the sentencing hearing by failing to follow the mandate of Florida Rule of Criminal Procedure 3.720. We reverse the sentence on No. 80-3298 and remand.

At the outset of the sentencing hearing appellant’s trial counsel raised an objection to proposed sentences on Nos. 79-2250, 79-3215 and 79-3216. His counsel and the court then agreed to postpone a disposition of those cases. The court thereupon proceeded to deal with No. 80-3298. While in the process of adjudicating appellant guilty of the charges on this case, the court and appellant’s counsel engaged in the following conversation:

MR. ANTONELLO: May it please the Court, Your Honor?
THE COURT: Yes.
MR. ANTONELLO: And I should have interrupted the Court earlier, I feel. But I thought maybe the defendant might want to say a few words on his own behalf for himself.
THE COURT: I — that is fine, but I have — I’ve had him before me before.
MR. ANTONELLO: I know.
THE COURT: I have seen this, and I have already made up my mind, and I'm resolute in the direction I’m going if I just could get it out. All right?
MR. ANTONELLO: I — yes, sir, and I had figured that’s — that is what the Court had in mind, and I know the Court is completely familiar with his case, but— but I — I just thought that he might want to say a few words.
THE COURT: Right. No, I’m not. He can say what he wishes, but it will be after I dispose of this.
MR. ANTONELLO: Yes, sir.

The court finished adjudicating him guilty on No. 80-3298 and then sentenced him. Later, appellant indicated through his counsel that he wished to waive the earlier objection on the other cases and have the sentences on those cases pronounced that day. The court thereupon adjudicated him guilty of the charges on those cases and pronounced sentences without objection.

Rule 3.720 provides that at the sentencing hearing the sentencing court shall entertain submissions and evidence by the parties which are relevant to the sentence. The language of this rule, of course, is mandatory. Mask v. State, 289 So.2d 385 (Fla.1973); Culbertson v. State, 306 So.2d 142 (Fla. 2d DCA 1975). We believe that the court violated this rule by refusing to allow appellant the opportunity to submit testimony or present evidence in mitigation on No. 80-3298.

Accordingly, we reverse the sentence on No. 80-3298 and remand for resentencing. We affirm all the convictions and the other sentences.

REVERSED in part, AFFIRMED in part, and REMANDED.

OTT, C.J., and DANAHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Carlos BATEMAN, Appellee.
    No. 81-2580.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellant.
    L. Mark Dachs, Miami, for appellee.
   HOBSON, Acting Chief Judge.

The State appeals an order which sentenced Carlos Bateman to less than the mandatory minimum for a conviction for drug trafficking in violation of section 893.-135(1), Florida Statutes (1981), despite the state attorney’s refusal to move for a reduction of the mandatory minimum pursuant to section 893.135(3). We reverse.

Appellee and several others were charged with trafficking in cocaine in excess of 400 grams, in violation of section 893.135(l)(b)3. Appellee pled not guilty but later voluntarily withdrew the plea and pled guilty with the understanding that he might receive the 15-year mandatory minimum term of imprisonment. See section 893.135(l)(b)3. The court then adjudicated him guilty of the charge but postponed imposition of a sentence pending completion of a presen-tence investigation.

Thereafter, appellee provided the state attorney with information regarding the identity of the cocaine supplier with the apparent expectation that he would receive lenient treatment at the time of sentencing pursuant to subsection (3) of section 893.-135. This subsection, which acts as an “escape valve” from the severe mandatory minima of subsection (1), reads in pertinent part:

(3) The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals.... The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

At the sentencing hearing the state attorney refused to move for a reduction of the 15-year mandatory minimum. He maintained that appellee had not provided him with “substantial assistance” within the meaning of subsection (3). Appellee contended that, notwithstanding the state attorney’s refusal to move for a reduction, the court had the discretion under subsection (3) to determine whether he had rendered “substantial assistance” and, if it so found, to sentence him to less than 15 years. The court apparently accepted appellee’s invalid argument since it found that he had furnished “substantial assistance” and imposed a sentence of only five years.

It is settled that, absent a motion by the state attorney pursuant to subsection (3) of section 893.135 for a reduction of sentence, the sentencing court lacks the authority under subsection (3) to reduce the sentence. See State v. Taylor, 411 So.2d 993 (Fla. 4th DCA 1982).

Appellee raises two arguments: He asserts initially that subsection (3), so read, erodes the separation of powers doctrine by vesting the executive branch with powers allocated to the judicial branch. In State v. Benitez, 395 So.2d 514 (Fla.1981), the court rejected this same constitutional argument. Id. at 519. Hence, we do not believe that the argument warrants further mention here.

Appellee next contends that subsection (3) violates his right to due process of law because of “prosecutorial abuse” in this case. In State v. Werner, 402 So.2d 386 (Fla.1981), the court held subsection (3) constitutional on its face but indicated that prosecutorial overreaching in a particular factual scenario might render it unconstitutional as applied. Appellee, however, does not point to any action or inaction on the state attorney’s part which amounted to “overreaching” or “abuse.” Further, the sentencing court did not find that the state attorney acted in bad faith in refusing to move for a reduction. Regardless, a review of the record convinces us that the state attorney acted in good faith in refusing to move for a reduction. In fact, he affirmatively demonstrated to the sentencing court that appellee’s information was stale, cumulative, partially untrue, and insufficient.

Accordingly, we reverse the sentence and remand with directions that the court sentence appellee on the conviction to the mandatory minimum.

REVERSED and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Dorothy Q. CHAPMAN, as Personal Representative of the Estate of Wilma Arlene Chapman, Deceased, Appellant, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 82-1187.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.

      Robert M. Todd of Mattson, McGrady & Todd, P.A., St. Petersburg, for appellant.
    W. Gray Dunlap, County Atty., and Gerard R. Quinlan, Asst. County Atty., Clear-water, for appellee.
   SCHEB, Judge.

The plaintiff in a wrongful death action challenges the trial court’s entry of a summary final judgment in favor of the county. We reverse.

At an outing sponsored by Spencer Memorial Baptist School, Wilma Chapman drowned on July 25, 1980, while swimming in a lake at a park owned by Pinellas County. Her mother, Dorothy Chapman, individually, and as personal representative, brought a wrongful death action against the school and the county. Plaintiff alleged that the death of her six-year-old daughter was due to the negligence of the defendants.

Pinellas County answered denying negligence and incorporating several affirmative defenses. In one defense the county asserted it was not liable because of section 375.-251, Florida Statutes (1979). Subsection (2) of the statute states that an owner who, without charge, provides a park area to the public for recreational purposes owes no duty of care to keep that park area safe for use by others. The county moved for summary judgment on basis of the statute. The trial court recognized that our sister court in Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla.3d DCA), petition for review denied, 389 So.2d 1113 (Fla.1980), held that section 375.251 does not apply to a county. The court, however, rejected this precedent and held that the better rationale was that the statute did apply and its effect was to immunize the county. Noting its ruling was consistent with other holdings in the Sixth Judicial Circuit, the trial court entered summary final judgment in favor of Pinellas County. This appeal ensued.

We agree with Yelvington and hold that section 375.251 does not apply to counties. Subsection (1) thereof provides:

The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability to persons going thereon and to third persons who may be damaged by the acts or omissions of persons going thereon.

(Emphasis supplied.)

As the county observes, the Third District did not explicate its reasoning process in Yelvington. We think the obvious intent of the legislature in enacting section 375.251 was to encourage private owners and lessees to open their land to the public for recreational use. In exchange, they would be relieved of any duty of care toward any recreational users of that land. Since the statute does not apply if any charge is made for entering or using the park area, private parties must pay for their maintenance expenses. A county, on the other hand, generally maintains its parks from available tax funds.

When the statute was passed in 1963, counties were afforded sovereign immunity absent any waiver by legislative enactment. See Art. X, § 13, Fla.Const. No such waiver existed at that time, and it is logical to conclude that section 375.251 was not designed to immunize counties since they were already immune. Effective January 1, 1975, section 768.28 waived sovereign immunity of counties from tort liability. With sovereign immunity now a thing of the past, there is no reason to conclude that counties should be accorded immunity by virtue of a statute intended to confer a benefit on private owners who serve a public purpose by making land available without charge for recreational purposes.

The county argues that if held to owe a duty of care to all persons using its parks, it would either have to close some of its facilities or levy an admission charge. This, of course, is a policy matter for judgment of the local authorities; however, section 768.-28(13) authorizes a county to protect itself with liability insurance coverage in these instances.

True, prior cases have held counties immune from tort liability in similar situations, but only because section 768.28 was not yet in effect at the time of the alleged negligence. See Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978); McPhee v. Dade County, 362 So.2d 74 (Fla.3d DCA 1978). Those cases imply that the counties would have been subject to liability had section 768.28 been in effect. That section was applicable when plaintiff’s decedent drowned, and we therefore hold that Pinellas County is not immune from tort liability.

Finally, we agree with appellant that a trial court is obligated to follow decisions of other district courts of appeal in this state in the absence of conflicting authority and where the appellate court in its own district has not decided the issue. As the supreme court pointed out in Stanfill v. State, 384 So.2d 141 (Fla.1980), decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by the supreme court. Therefore, a trial court in this district is obliged to follow the precedents of other district courts of appeal absent a controlling precedent of this court or the supreme court. Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981), rev’d on other grounds, 415 So.2d 12 (Fla.1982); State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976). But see Smith v. Venus Condominium Ass’n, 343 So.2d 1284 (Fla. 1st DCA 1976), vacated on other grounds, 352 So.2d 1169 (Fla.1977).

Accordingly, we reverse the summary final judgment entered in favor of the county and remand for further proceedings consistent with this opinion.

OTT, C.J., and DANAHY, J., concur.


text:
    Ronald Elton CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 82-2108.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.

      James W. Kelly of Accorsi & Kelly, P.A., Avon Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   ON MOTION TO REVIEW BAIL PENDING APPEAL

PER CURIAM.

Appellant was adjudged guilty of drug trafficking, a first degree felony in violation of section 893.135, Florida Statutes (1979). Appellant filed a motion for bail pending appeal. The trial court denied the motion stating that “section 903.133, Florida Statutes prohibits this Court from granting bail to said Defendant since he has been adjudged guilty of first degree felony for violation of section 893.135, Florida Statutes.” Section 903.133 states that “no person adjudged guilty of a first degree felony for a violation of s. 893.13 or s. 893.135 shall be admitted to bail pending appellate review.” Appellant contends that the application of this statute in his case violates the prohibition against ex post facto laws because the commission of the offense took place before the effective date of section 903.133. We agree.

Release on bail pending appeal is not an absolute right guaranteed by the eighth amendment to the United States Constitution. Kelly v. State, 362 So.2d 945 (Fla.1978); Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981) reh’g. denied, 415 So.2d 1359 (Fla.1982). However, a law need not impair an affirmative, enforceable right to violate the ex post facto prohibition. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). A statute that merely alters penal provisions accorded by the grace of the legislature violates the ex post facto prohibition if it is both retrospective and is more onerous than the law in effect on the date of the offense. Weaver.

In Greene v. State, 238 So.2d 296 (Fla.1970), the appellant was denied bail pending appeal. The trial court relied upon section 903.132, Florida Statutes which denies bail pending appeal to any person who “has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony....” The Florida Supreme Court in Greene held that although section 903.132 depends upon conviction of the second or subsequent offense, the significant event as far as judging ex post facto effect is the date of the offense rather than the conviction. Likewise, although section 903.133, which denies bail pending appeal of a conviction of drug trafficking, depends upon conviction of the offense, the significant event as far as judging ex post facto effect is the date of the offense and not the date of conviction.

In the instant case, appellant committed the offense on March 13, 1980. He was adjudged guilty on December 10, 1981. The effective date of section 903.133 was June 6, 1980. Thus, appellant committed the offense prior to the effective date of the statute. Therefore, as to appellant, section 903.133 was ex post facto in effect and should not have been relied upon in denying release on bail pending appeal.

We reverse the court’s order denying appellant bail pending appeal and remand for proceedings consistent with Florida Rule of Appellate Procedure 9.140(e). See also Younghans v. State, 90 So.2d 308 (Fla.1956).

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


text:
    Elijah MACK, Appellant, v. STATE of Florida, Appellee.
    No. AH-260.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982), Case No. AI-309, opinion filed November 24, 1982.

McCORD, ERVIN and JOANOS, JJ., concur.


text:
    VERDI’S ITALIAN RESTAURANT and American Liberty Insurance Company, Appellants, v. Marion CAMPANELLA, Appellee.
    No. AK-242.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.

      C. Randal Morcroft of Anthony J. Beisler, P.A., Fort Lauderdale, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellee.
   PER CURIAM.

This cause is before us on appeal from an order entered in a workers’ compensation proceeding challenged here by the employer/carrier as to the award of wage loss benefits and medical care relative to a weight-loss program and as to the determination that claimant reached maximum medical improvement on October 27, 1980. We affirm.

Marion Campanella, a 57-year-old high school graduate with extensive experience in accounting and bookkeeping, suffered a work-connected accident on December 11, 1979, when she fell, injuring her knee. Knee surgery was performed, and claimant was determined to have reached maximum medical improvement as of October 27, 1980, with a ten percent permanent disability.

We affirm the deputy’s award of wage loss benefits, awarded from October 27, 1980 to the date of hearing with credit for all benefits paid during this interval, based upon the deputy’s finding that claimant made a genuine and sincere effort to return to work after being released by her treating physician. The deputy’s award of medical care relative to claimant’s weight-loss program is palliative in nature, aimed at relieving the pain in her leg and lowering her blood pressure, and is therefore not inconsistent with the deputy’s finding of maximum medical improvement. We therefore affirm the deputy’s order regarding the weight-loss program, but with the caveat that claimant has a corresponding duty to take reasonable measures to reduce her disability by cooperating fully in the weight-loss program. The employer/carrier is not required to supply such palliative treatment indefinitely or in the absence of claimant’s voluntary cooperation, and may seek modification of the deputy’s order in this regard if the weight-loss program fails to achieve desired results within a reasonable period of time. See, Benton & Company, Inc. v. Lopinto, IRC Order 2-2513 (1974), and Lobintz v. Orange Memorial Hospital, 126 So.2d 739 (Fla.1961).

The judgment is affirmed.

McCORD, BOOTH and WENTWORTH, JJ., concur.