text:
      W. Jack SOWERS Appellant, v. James M. HOENSTINE, d/b/a Oceanic Enterprises, Appellee.
    No. 81-1442.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      Del G. Potter of Potter & Vason, Mount Dora, for appellant.
    George L. Winslow, Jr., Orlando, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Jack Sowers, defendant below, appeals from a final judgment in lien foreclosure. We reverse and dismiss.

Sowers engaged appellee James Hoen-stine, d/b/a Oceanic Enterprises, to construct a concrete pad on his property. Dissatisfied with the work, Sowers refused to pay. Hoenstine filed a mechanic’s lien and then sued to foreclose on the lien. A judgment for $9,700 plus $3,311.65 attorney fees was entered for Hoenstine.

At the close of Hoenstine’s case, Sowers moved for a directed verdict on the ground that Hoenstine failed to comply with sections 713.05 and 713.06(3)(d)(l), Florida Statutes (1979). Section 713.05 provides in relevant part that:

A lienor, except a laborer or material-man, who is in privity with the owner and claims a lien under this section shall furnish the contractor’s affidavit required in § 713.06(3)(d).
Section 713.06(3)(d) states in part that: When the final payment under a direct contract becomes due the contractor:
1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not. (emphasis added)

Sowers contends that Hoenstine was required to file a contractor’s affidavit under these sections and that his failure to do so barred him from maintaining this lawsuit. See Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA June 23, 1982); Atlantic Gardens Landscaping v. Boca Baton Land Dev., 360 So.2d 1278 (Fla. 4th DCA 1978); Leader Mortgage Co. v. Rickards Electric Service, 348 So.2d 1202 (Fla. 4th DCA 1977); Brown v. First Federal Savings of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964). It is clear that the filing of a. contractor’s affidavit is jurisdictional and a condition precedent to the right to maintain an action to foreclose a mechanic’s lien. While Sowers made no attempt to secure the dismissal of the lawsuit prior to trial, which he should have done before filing a responsive pleading, see, e.g., Saleh v. Watkins, the matter may be raised by a motion for a directed verdict. Atlantic Gardens; Leader Mortgage Co.

Hoenstine contends that the filing requirement is not applicable to him because he was not a “contractor,” but rather was a “sub-contractor.” See Fontainebleau Hotel Corp. v. Lowry Electric Co., 269 So.2d 738 (Fla. 3d DCA 1972); Art Berman Concrete, Inc. v. Sey Construction Corp., 247 So.2d 791 (Fla. 3d DCA 1971). The installation of the pad was only a small part of the improvements being made. Hoenstine contends that the “contractor” was the person responsible for the larger portion of the work. There is no dispute that Hoenstine was hired by the owner, Sowers, and was to be paid by him.

Hoenstine’s argument is without merit. Under the Mechanic’s Lien Law, a “contractor” is defined in relevant part as: “A person other than a materialman or laborer who enters into a contract with the owner of real property for improving it.... ” § 713.01(2), Fla.Stat. (1979). In Leader Mortgage Co. v. Rickards Electric Service, the court relied on this definition in rejecting the argument of a lienor who contended that he was a sub-contractor and did not have to comply with the affidavit requirement. The court pointed out that the lien- or:

[M]ade a direct contract with the owner and was in privity with said owner. The contract provided, inter alia, that [lienor] furnish all labor, tools, materials and equipment necessary to complete all electrical work.. ..

348 So.2d at 1205.

In Brown v. First Federal Savings of New Smyrna, the court, confronted with a lienor who agreed to furnish and install all plumbing materials on a development project, observed that:

Generally, it may be said that where the owner contracts directly with one whose only obligation is to alone render personal services incident to the improvement, or with a materialman whose only obligation is to furnish materials to the project, and if the contract is one which under customary business practices excludes the notion that the services of a sub-contractor are likely in order to consummate it, [then compliance with affidavit requirement is excused]. However, where as in this case the property owner contracts with one who undertakes to furnish labor and materials, either or both, incident to distinct phases of a multiple improvement and over-all project, the transaction takes on the character of one which under normal business practices is likely to or may be prosecuted by means of sub-contracts involving the furnishing of labor and materials, either or both, by third parties; and under such circumstances the efficient purpose served by the [affidavit] is apparent.

160 So.2d at 561.

The court in Brown ultimately declared that:

[Although the owner may be performing or supervising some of the work on the project, those with whom he contracts directly to furnish labor and materials, other than a laborer or materialman, are themselves contractors within the definition of that term as contained in the Mechanics’ Lien Law.

Id. at 563. See also Atlantic Gardens (fact that owner is also acting as his own general contractor does not excuse claimant who is “contractor” within meaning of section 713.01(2) from furnishing affidavit).

Here Hoenstine contracted directly with Sowers, the landowner, to furnish labor and materials to construct a concrete pad on Sower’s property. It is true that Sowers controlled and performed other aspects of the construction, such as placing holding tanks below the area to be padded, leveling and packing the dirt in the area and supplying some materials to Hoenstine to build forms that were to be used. However, this did not alter Hoenstine’s status as a “contractor” under section 713.01(2), since the contract between Sowers and Hoenstine was of the type that could have involved the use of sub-contractors. Therefore, under section 713.06(3)(d), an affidavit was required to be filed prior to institution of suit. When Hoenstine’s failure to comply with this jurisdictional requirement was brought to the court’s attention via the motion for a directed verdict, the court should have granted the motion and dismissed the complaint.

Sowers has moved for an award of attorney fees pursuant to section 713.29, Florida Statutes. The motion is granted for the services of Sowers’ attorney on appeal. We remand for determination of a reasonable fee.

REVERSED and REMANDED.

DAUKSCH and COBB, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Craig SHIVER and Fred Schwartz, a/k/a Fred King, Appellants, v. STATE of Florida, Appellee.
    No. 81-1450.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Ronald A. Dion of Entin, Schwartz, An-gert, Dion & Broudy, P.A., North Miami Beach, and Clyde M. Taylor, Jr., Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Craig Shiver and Fred Schwartz appeal from their convictions for attempted trafficking in cannabis.

The only point raised which merits discussion is whether the trial court erred in denying Schwartz’s counsel leave to withdraw from representation of Schwartz’s co-defendant, Bryant.

In November, 1980, attorneys Alvin Entin and Clyde Taylor filed a notice of appearance on behalf of Schwartz and Bryant. At a hearing on May 26,1981, William Montjoy was sent by Taylor to represent Schwartz and Bryant. Thereafter, on July 9,1981, at a pre-trial hearing on appellants’ motions to dismiss and suppress, attorneys Dion and Angert appeared at the request of attorney Entin to represent Schwartz. They also sought a formal withdrawal from representation of Bryant leaving Montjoy, who was present, to represent Bryant. The trial judge reserved ruling for trial on the motion to withdraw, but permitted only one of the defense attorneys to cross-examine witnesses for both Schwartz and Bryant. Attorney Dion stated that he had no objection to this for the purpose of the pre-trial motions.

At the trial, the court announced it would permit only one attorney to handle the interrogation on behalf of both Schwartz and Bryant.

Dion then informed the court as follows: It had been apparent that there is certain testimony, there are certain statements of one Defendant versus the other that would create a conflict, and we again formally announce at this point, for the purpose of trial, that Mr. Entin and Mr. Angert and Mr. Dion request to withdraw specifically on Mr. Bryant, and Mr. Montjoy would continue representation of Mr. Bryant.

The trial judge rejected this request, stating:

Mr. Taylor is the person to be present because he’s the one that selected the Jury. This Jury was selected by Mr. Taylor on both Defendants, and I will not change after the Jury was selected and we’re now proceeding to trial two hours late. One of you will do the cross-examination for each Defendant.

Subsequently, during the cross-examination of one of the state’s witnesses, Dion moved for a severance. The court made the following comment:

[I]f you want to continue with this motion to sever because you now find a conflict after the case is halfway through the trial, that you have discovered new things that would be a detriment, I told you I would grant you a mistrial as to all the Defendants because you can’t proceed.

Dion stated that he had not requested a mistrial and the court repeated:

I agree, if there is a conflict, I will grant it. But, if there is not a conflict, I will proceed to trial....

Near the close of trial, when Bryant absented himself, Dion again moved to withdraw from representing Bryant. The court denied the request and Dion then requested and received a motion in limine to prevent him from commenting on Bryant’s absence during closing arguments.

Schwartz now contends that his Sixth Amendment right to effective assistance of counsel, which encompasses the right to conflict-free representation, was violated by the court’s refusal to permit Dion to withdraw from representation of Bryant.

In Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the U. S. Supreme Court held that where a timely objection to multiple representation is interposed on the ground of possible conflict of interest, the trial court is required to make provision for separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel. Holloway, 98 S.Ct. at 1178. Where the trial court fails to act and joint representation of conflicting interests occurs, reversal is necessary and the defendant need not show prejudice. Id. at 1180-82.

Here, objections were made before trial by attorney Dion who advised the trial judge that conflicting interests between Schwartz and Bryant existed and that he wished to withdraw from representing Bryant and have Montjoy represent Bryant. This was a timely objection and the trial court should have either provided for separate counsel or inquired as to whether the risk of a conflict of interest was remote. The trial court did neither.

The remaining question is whether it appears that Dion was forced to represent conflicting interests. In Foster v. State, 387 So.2d 344, 345 (Fla.1980), the Florida Supreme Court, relying on Holloway stated that “to deny a motion for separate representation, where a risk of conflicting interests exists, is reversible error.” (emphasis added)

Various federal courts of appeal have enunciated a different test. For instance, in Baty v. Balkcom, 661 F.2d 391 (5th Cir. 1981), it was stated that there must be evidence of an actual conflict to justify reversal. In defining a conflict, the court said:

An actual conflict exists if counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.

661 F.2d at 395. See also Thacker v. Bordenkircher, 590 F.2d 640 (6th Cir. 1979).

Here, the evidence of the existence of a conflict of interest rests on Dion’s announcement that “there is certain testimony, there are certain statements of one Defendant versus the other that would create a conflict” and his use of a motion in limine to prevent himself from commenting in Schwartz’s behalf on Bryant’s absence during closing arguments.

We conclude that these factors are sufficient to indicate the existence of a conflict under either test. Therefore we REVERSE as to appellant Schwartz and REMAND for new trial. As to appellant Shiver, we find no reversible error and AFFIRM.

DAUKSCH and COBB, JJ., concur.

      . Appellants have raised several other points but we have found no harmful error and affirm as to those points.

      . On appeal, Schwartz states that the motion “was obviously made on behalf of the absent Bryant”, though at trial Dion made the motion “on behalf of Mr. Schwartz.”

      . Appellant Shiver had his own counsel from the public defender’s office.

        . Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

      . While Holloway involved state-appointed counsel, its principles apply even where privately-retained counsel is involved. Cuyler v. Sullivan, 100 S.Ct. at 1715-16; Vagner v. Wainwright, 398 So.2d 448 (Fla.1981).

      . See Cuyler v. Sullivan for a discussion on the need for an objection to multiple representation.

      . There is no evidence in the record to indicate that the motion was made for the purpose of delay, Holloway, 98 S.Ct. at 1180, especially since Montjoy was present at the trial and familiar with the case.

      . This declaration in Foster as to a “risk of conflicting interests” must be read in conjunction with the facts of that case. In Foster, the defendant and a state witness, who was charged with the same crimes as the defendant, and gave damaging testimony against him, were both represented by the same court-appointed attorney, thus giving rise to a substantial likelihood of conflict.


author: SHARP, Judge.

text:
    Robert H. ADICKES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1469.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Robert Hoyt Adickes, pro se.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Pursuant to Florida Rule of Appellate Procedure 9.040(c) (1982) we have elected to treat this cause as an appeal from a denial of post-conviction relief. We affirm. State v. Goodson, 403 So.2d 1337 (Fla.1981); Mitchell v. State, 381 So.2d 760 (Fla. 5th DCA 1980).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Fla.R.Crim.P. 3.850 (1982).


author: PER CURIAM.

text:
    Thomas A. MUTCHLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1486.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief Asst. Public Defender, and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982) [1982 F.L.W. 1241] and Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982) [1982 F.L.W. 820].

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


author: COWART, Judge.

text:
    BUDGET ELECTRIC COMPANY, Appellant, v. George STRAUSS, et al, Partners doing business as 138-42 Beach Street Associates, et al., Appellees.
    No. 81-1498.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      Robert B. Worman, Orlando, for appellant.
    Louis E. Conway of Raymond, Wilson, Conway, Barr, Burrows & Jester, Ormond Beach, for appellees.
   COWART, Judge.

This case involves the question of whether a lienor under contract with a lessee is entitled to a lien against the lessor’s interest in the leased property.

Appellant, who performed work on leased property under a contract with the lessee, claims entitlement to a mechanics’ lien against the lessor’s interest in the leased property, citing section 713.10, Florida Statutes (1981), Anderson v. Sokolik, 88 So.2d 511 (Fla.1956), and Jenkins v. Graham, 237 So.2d 330 (Fla. 4th DCA 1970).

Prior to Anderson, case law subjected a lessor’s interest to mechanics’ liens for improvements contracted for by the lessee only where the lease expressly required the lessee to make the improvements. The lease in Anderson did not expressly require improvements be made, but the court, reading the lease as a whole, found an implied obligation of the lessee to place buildings on the leased property. Appellant, however, relies on language in Anderson stating that the parties knew “that the improvements were the pith of the lease and except for them the lease would not have been executed.” This language in Anderson is much broader than its holding which is that an obligation to improve implied from the terms of the lease is just as effective as an express obligation to improve in subjecting the lessor’s interest to liens. The mere fact that the parties “contemplated” improvements or that the lessor knew that the lessee intended to improve the property and the lessor gave his consent or permission for the lessee to make improvements does not make the improvements the “pith” of the lease. See, e.g., Jones v. Wright, 391 So.2d 313 (Fla. 2d DCA 1980); Edward L. Nezelek, Inc. v. Food Fair Properties Agency, Inc., 309 So.2d 219 (Fla. 3d DCA 1975); Jennings v. Connecticut General Life Insurance Co., 177 So.2d 66 (Fla. 2d DCA 1965); Tom Joyce Realty Corp. v. Popkin, 111 So.2d 707 (Fla. 3d DCA 1959); Dills v. Tomoka Land Co., 108 So.2d 896 (Fla. 1st DCA 1959). Jenkins v. Graham appears to be contrary to these cases.

The test is: if, as. part of the consideration for the lease, the. lessee is required to make improvements under circumstances that the lessor could enforce that promise, then the leased property should be subject to the liens of parties contracting with the lessee to perform such improvements. We- have examined the lease in question and agree with the trial court that, while the parties to the lease contemplated that the lessee would make renovating improvements, including the electrical work that was later performed by the appellant, the lease does not require such improvements to be made. There is evidence to support the trial court’s conclusion that the contemplated improvements were made for the benefit of the lessee and not for the lessors and that the lessors did not especially desire the renovation contemplated by the lessee because it tended to convert the leased building from a general use property to a special use property, thereby reducing its marketability. Failure of the lessee to make improvements under the lease in this case would not have constituted a breach of the lease entitling the lessor to a legal remedy.

Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L. Weed, Architect, Inc. v. Horning, 159 Fla. 847, 33 So.2d 648 (1947). That case held only that where a lease expressly required the lessee to make improvements, the lessee is deemed the owner’s agent, the contractor dealing with the lessee may be construed to be in privity with the owner, and no notice to owner is required. Where, as here, the contract neither expressly nor impliedly required the lessee to make improvements, no such privity can be implied and the notice to owner is required. Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942).

In summary, the mere fact that the parties to a lease may contemplate that the lessee will make improvements to the leasehold property is insufficient to subject the lessor’s interest to mechanics’ liens in favor of persons contracting with the lessee to make such improvements. The lease must, expressly or impliedly, require such improvements to be made. Only in the latter instance may lienors dealing with the lessee be deemed to be in privity with the owner and not be required to give the “notice to owner” required by section 713.06(2)(a), Florida Statutes (1981).

AFFIRMED.

ORFINGER, C. J., and COBB, J., concur.

      . E.g., Brenner v. Smullian, 84 So.2d 44 (Fla.1955); Masterbilt Corp. v. S. A. Ryan Motors, Inc. of Miami, 149 Fla. 644, 6 So.2d 818 (1942).


text:
    Richard J. CHARRON and Geraldine S. Charron, Appellants, v. COACHMEN INDUSTRIES, INC., Appellee.
    No. 81-1514.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    H. Vernon Davids, Winter Garden, for appellants.
    Carol E. Donahue of Baker & Hostetler, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The Charrons appeal from a summary final judgment in favor of Coachmen Industries in a suit on a promissory note executed by the Charrons. The Charrons contend that Coachmen failed to refute two affirmative defenses raised by them and hence the entry of summary judgment was improper. We agree and reverse.

Coachmen filed suit against the Charrons seeking to recover on two promissory notes. Count I involved a note to a bank which was later assigned to Coachmen. Summary judgment in favor of Coachmen has not been appealed.

Count II involved a note to Coachmen executed on the date that Charron’s employment with Camper’s World of Orlando, Inc. was terminated. Charron and Coachmen were the only shareholders of Camper’s World. Coachmen had originally hired Charron to be president and general manager of Camper’s World. Coachmen claimed that the note was executed by the Charrons to reflect a salary advance that Charron had taken while employed by Camper’s World.

As an affirmative defense, the Charrons claimed that the note was not supported by consideration. Coachmen contends that Charron’s own admission that he had not repaid the salary advance conclusively refutes this defense. If the note had been to Camper’s World, we would agree with Coachmen’s contention. However, the note was to Coachmen, to whom Charron claimed that he was not indebted.

Coachmen, however, points out that on the date the note was executed, Coachmen had purchased Charron’s interest in Camper’s World and had become the sole stockholder in Camper’s World.

Contrary to Coachmen’s implication, the fact that Coachmen was the sole shareholder on the date that the note was executed would not conclusively establish the necessary consideration. Generally the board of directors represents the corporation and conducts its business while stockholders are without power to represent the corporation unless power is delegated to them or their acts are ratified by the corporation. Mease v. Warm Mineral Springs, Inc., 128 So.2d 174 (Fla. 2d DCA 1961). Here there is no evidence that Coachmen, a stockholder, was authorized by Camper’s World to receive such a note or that this act had been ratified by the corporation. In addition, the termination agreement did not refer to the note or to the advance, nor did the note itself contain any reference to the advance. In these circumstances, Coachmen has not conclusively refuted the affirmative defense that there was a lack of consideration for the note to Coachmen.

In addition, the second affirmative defense was not conclusively refuted by Coachmen. As a separate defense, the Charrons had alleged that the sole consideration for the execution of the note was Coachmen’s agreement to pay their debt to Camper’s World. The Charrons further alleged that Coachmen has failed to pay this debt. There is no evidence in the record that a debt of the Charrons has been paid by Coachmen or forgiven by Camper’s World.

As Coachmen failed to establish the legal insufficiency or conclusively refute the two affirmative defenses asserted by the Char-rons, the entry of summary judgment was error. Bunner v. Florida Coast Bank of Coral Springs, 390 So.2d 126 (Fla. 4th DCA 1980); Howdeshell v. First Nat. Bank of Clearwater, 369 So.2d 432 (Fla. 2d DCA 1979). We therefore REVERSE and REMAND for a trial on these issues.

ORFINGER, C. J., and COBB, J., concur.


text:
    Lewis DOWDA, Appellant, v. STATE of Florida, Appellee.
    No. 82-906.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    James Russo, Public Defender, and Norman D. Levin, Asst. Public Defender, Sanford, for appellant.
    No appearance for appellee.
   COWART, Judge.

The trial court declared appellant’s pro se 3.850 motion a nullity, stating that appellant cannot file a pleading when represented by counsel and citing Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980). The trouble is that the rule requires that such motions be given an evidentiary hearing unless the files and records conclusively show entitlement to no relief and, when so, that such files and records be attached to the order. There is nothing attached to the appealed order showing that appellant has counsel appointed or retained to file and prosecute his 3.850 motion. Appellant’s motion appears to raise the troublesome issue as to whether he received the proper amount of credit for jail time served before sentencing. See Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). Accordingly we reverse and remand this cause for the trial court to either (1) enter another order attaching portions of court files and records showing either (a) that appellant has counsel to file and present his 3.850 motion or (b) that he received proper credit for all jail time served before sentencing, or (2) conduct an evidentiary hearing to determine one or both of those questions of fact.

REVERSED AND REMANDED.

ORFINGER, C. J., and SHARP, J., concur.


author: MILLS, Judge.

text:
    James ALLEN, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AE-428.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    James Allen, pro se.
    No appearance for appellee.
   MILLS, Judge.

Allen appeals Commission action establishing his presumptive parole release date. We affirm.

Allen’s ex post facto argument is indistinguishable from that rejected in Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

No error has been shown in the aggravations for concurrent sentences.

BOOTH and THOMPSON, JJ„ concur.


author: LARRY G. SMITH, Judge.

text:
    APOPKA GREENHOUSE and Aetna Casualty & Surety, Appellants, v. Harold SCOTT, Appellee.
    No. AI-38.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Robert E. Bonner, Pitts, Eubanks & Ross, Orlando, for appellants.
    Thomas R. Mooney, Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   LARRY G. SMITH, Judge.

We affirm the deputy’s order causally relating claimant’s herniated disc to his industrial accident of September 12, 1979. Although the evidence was capable of disparate interpretations, the deputy’s order determining causality was based on competent and substantial evidence. Further, even though the claimant failed to conduct a work search, the deputy’s order awarding wage loss benefits is sustainable based upon the evidence of claimant’s physical limitations, Dr. Shea’s deposition testimony regarding claimant’s inability to work, and the deputy’s observation of the claimant which taken together justifies claimant’s excusal from a work search.

Accordingly, the order appealed is AFFIRMED.

JOANOS and THOMPSON, JJ„ concur.


text:
    James R. BURLESON and Helen Burleson, Appellants, v. William J. FEALLOCK, III, and Southeastern Fidelity Insurance Company, Appellees.
    No. AI-383.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    Bruce A. McDonald and Thomas F. Con-don of Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    John F. Windham of Beggs & Lane, Pensacola, for appellees.
   MILLS, Judge.

The Burlesons, plaintiffs below, appeal a judgment entered on a jury verdict assessing the degrees of comparative negligence between Burleson and Feallock. We affirm.

There was no error in the denial of the Burlesons’ motion for directed verdict. Feallock’s testimony created an issue which was appropriate for jury resolution.

The denial of the Burlesons’ request for standard instruction 4.11 was not reversible error. The evidence does not support a finding of a violation of Sections 316.183(4) and 316.185, Florida Statutes (1981).

The jury properly disposed of the factual disputes and the trial court correctly instructed the jury on the applicable law in this automobile accident case.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    A. F. BROWN, Appellant, v. Lee RUSSO, Appellee.
    No. AI-475.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.

      James A. Johnston, Pensacola, for appellant.
    J. Nixon Daniel, III of Beggs & Lane, Pensacola, for appellee.
   MILLS, Judge.

Brown, assignee of a judgment, appeals an order of the trial court discharging Russo, the debtor, from paying the judgment because Russo had paid the amount of the judgment to Virginia National Bank, the assignor, without notice of the assignment. We affirm.

On 15 October 1975, Virginia National Bank obtained a judgment against Russo in the amount of $9,325. No action was taken to collect the judgment. In November 1980, Brown filed suit against Russo to foreclose on a second mortgage which he held on a parcel of property owned by Russo. Brown attempted to secure an assignment of the Bank’s prior judgment because it was superior to his mortgage. On 29 May 1981, Lipman, an attorney for the Bank, executed an assignment on behalf of the Bank and recorded it in Escambia County on the same day. The Bank executed an assignment to Brown on 5 June 1981, but this assignment was not recorded until 30 June 1981.

Meanwhile, in an attempt to refinance another parcel of his property, Russo contacted the Bank to inquire about the satisfaction of the 1975 judgment. He was told that if he would send $1,000 down and a note for $2,000 payable in installments the Bank would execute a satisfaction of the judgment. Russo sent the $1,000 on or about 24 June 1981, and he sent the note approximately one day thereafter.

On 28 June 1981, Russo, for the first time, received actual notice of the Bank’s prior assignment of the judgment to Brown. On 29 June 1981, the Bank executed a satisfaction of the judgment which was recorded on 6 July 1981. Thereafter, Brown attempted to levy on Russo’s property pursuant to his judgment. The trial court quashed the assignment of judgment and writ of execution, holding that because Russo had made payment before receiving actual or implied notice of the assignment, he was discharged.

There is no dispute that Russo received actual notice of the assignment after actual payment had been made but before a satisfaction of judgment had been formally executed by the Bank. In Boulevard National Bank of Miami v. Air Metals Industries, Inc., 176 So.2d 94 (Fla.1965), the Florida Supreme Court quoted with approval the general rule that where the debtor pays the assignor before receiving notice of the assignment to the assignee, the debt will be discharged. See also, 32 A.L.R. 1021 and cases cited therein.

Russo was discharged on the date he paid the judgment to the Bank.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Appellant, v. MOTOR AND COMPRESSOR COMPANY and Shelby Mutual Insurance Company, Appellees.
    No. AJ-215.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.
    G. W. Jacobs, Tallahassee, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   PER CURIAM.

The Special Disability Trust Fund seeks to appeal a workers’ compensation order finding that the employer/carrier was entitled to reimbursement for rehabilitation benefits paid on claimant’s behalf, but reserving “jurisdiction for the determination of any further matters related to the issues determined herein.” The order further indicates that the amount of reimbursement will be determined at a later date. Since this order is non-final, in that it fails to dispose of all matters ripe for determination and not stipulated between the parties, we conclude that we are without jurisdiction over this appeal. See Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA, 1982); Town of Palm Beach v. Watts, 7 F.L.W. 1330 (Fla. 1st DCA, Case No. AG-291, June 18, 1982); The Wash House v. Tucker, 413 So.2d 813, (Fla. 1st DCA 1982). Accordingly, the appeal is dismissed sua sponte without prejudice to review of the order in the event of an appeal from a final order awarding reimbursement.

MILLS, BOOTH and THOMPSON, JJ., concur.


text:
    J. D., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-499.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.

      Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

J. D. appeals two commitments and amended commitments to the Department of Health and Rehabilitative Services (HRS). We vacate the amended commitments and reinstate the original orders.

J. D. was committed for petit theft and placed on community control. Several months later he stole a bicycle, resulting in a commitment for grand theft and for violating his control. At the commitment hearing, Judge Green informed J. D. that he had lost his chance to be on the streets. He committed J. D. and asked HRS for three placement options. No predisposition report was filed. HRS provided three options which were ranked 1) halfway house; 2) start center; 3) intensive group.

After three days, HRS placed J. D. in an intensive group. This is a counseling program which allows the child to live at home. Judge Green then vacated his previous commitment order and inserted “3) training school” as the third option. HRS then found a halfway house for J. D.

Prior to the enactment of Section 39.-09(3)(e), the trial judge lacked authority to revisit commitment orders to control HRS placement of the child. J. N. v. State, 279 So.2d 50 (Fla. 4th DCA 1973). There is nothing in Section 39.09(3)(e) to alter this. The amended orders are therefore vacated.

We need not reach J. D.’s attack on the amended orders based on L. J. N. v. State, 411 So.2d 1349 (Fla. 1st DCA 1982).

J. D. also asserts error in the failure to file a predisposition report. Our review of the record reveals that J. D.’s counsel expressly waived the filing of the report. There is no error in the original commitments and they are reinstated.

BOOTH and THOMPSON, JJ., concur.


text:
    James HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. AL-456.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1982.

      James Howard, pro se, for appellant.
    No appearance for appellee.
   PER CURIAM.

Howard appeals the lower court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850. In his motion, Howard alleges first, that his sentence was imposed in violation of a plea agreement which had previously been accepted by the trial court, thus rendering his guilty plea involuntary; and second, that the assistant public defender, who was standing-in at sentencing for Howard’s absent counsel, rendered ineffective assistance in failing to object to the allegedly improper sentence. We find these allegations legally sufficient. See, Rice v. State, 400 So.2d 461 (Fla. 5th DCA 1980); Knight v. State, 394 So.2d 997 (Fla.1981).

Accordingly, the lower court was required to attach those portions of the files and records which conclusively show that Howard is entitled to no relief, or to hold an evidentiary hearing on the motion. Fla.R. Crim.P. 3.850. The court having failed to do so, this case is REVERSED and REMANDED for proceedings consistent with the rule and this opinion.

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


text:
    Daniel McCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 80-520.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Daniel McCarthy challenges the judgment of conviction, rendered by the Circuit Court for Broward County, of employing a scheme to defraud under Section 817.035(2). We have carefully reviewed the record and the briefs, and find only one point which merits discussion: whether appellant’s acquittal in a prior Palm Beach County prosecution barred the prosecution sub judice. We affirm.

By his Motion for Arrest of Judgment, filed two weeks after verdict and judgment, and by a pleading styled “Renewed Motion to Dismiss,” filed six weeks after verdict and judgment, appellant presented for the first time his defense of former jeopardy. The Motion for Arrest of Judgment merely alleged that the trial court lacked jurisdiction because the double jeopardy clause barred prosecution. The Renewed Motion to dismiss alleged that the State had previously prosecuted appellant under the same statute for an offense which occurred during the same time period as that sub judice, and that the State presented the same witnesses. Appellant did not allege that the State charged him with the same offense, that is, the same scheme, in both cases. He alleged no fact which, if proven, would tend to demonstrate that both prosecutions involved the same scheme. Appellant did not attach a copy of the information from the prior prosecution to either motion. The court held a hearing on the Renewed Motion to Dismiss on March 19, 1980, and held a hearing on the Motion for Arrest of Judgment on March 20, 1980. At the March 20 hearing, appellant’s counsel did not address the merits of the double jeopardy claim, but argued issues of timeliness of the motions and the effect of a prior prosecution on the jurisdiction of the court. He stated that he relied upon and incorporated into the hearing, double jeopardy arguments made in the March 19 hearing. Appellant did not include a transcript of the March 19 hearing in the record on appeal. The trial judge denied the Renewed Motion to Dismiss on the grounds that it was untimely and that it was legally insufficient. He also denied the Motion for Arrest of Judgment.

We have granted Appellant’s Motions to Supplement the record three times, but he has favored us with no documentation of the prior prosecution. We ordered appellant to supplement the record with the transcript of the March 19 hearing and all documents submitted therein. In response to this order, appellant finally informed us that no transcript of this hearing exists. He submitted no documents introduced at the March 19 hearing. In the absence of a transcript which indicates otherwise, we conclude that appellant presented no evidence of the prior prosecution to the trial court.

It is fundamental that appellate review is confined to the record on appeal [citation omitted]. A review of the record on appeal in the case sub judice reveals that the record is devoid of any evidence pertaining to the [prior] proceedings before the trial court either corroborating or substantiating appellant’s factual allegations in his brief. ... Accordingly, this court is precluded from considering appellant’s allegation of double jeopardy based upon these prior proceedings.

Suiero v. State, 248 So.2d 219, 220-221 (Fla. 4th DCA 1971) (footnote omitted). AFFIRMED.

BERANEK, HERSEY and DELL, JJ., concur.


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    STATE of Florida, Petitioner, v. Ronald Donald SMELT, Respondent.
    No. 82-1073.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1982.

      E. J. Salcines, State Atty., Elizabeth L. Hapner and Claire Cours Jackson, Asst. State Attys., Tampa, for petitioner.
    Richard A. Lazzara and Bennie Lazzara, Jr., Tampa, for respondent.
   PER CURIAM.

This certiorari petition is brought from an appellate decision of the circuit court reversing a judgment of the county court. The circuit judge held the county court improperly denied a motion to suppress evidence seized in connection with a search.

The search was made pursuant to a warrant which specified the premises to be searched but which went on to describe the items to be seized as follows:

[A]nd there is now being kept on said premises certain OBSCENE, LEWD AND LASCIVIOUS MOTION PICTURES FILMS
which is being kept and used in violation of the Laws of the State of Florida, to-wit: the Laws prohibiting CERTAIN ACTS IN CONNECTION WITH OBSCENE, LEWD AND LASCIVIOUS MATERIALS F.S.A. 847.011 AND IN-STRUMENTALITIES USED IN PERPETRATION OF A CRIME SUBJECT TO SEIZURE UNDER 933.02
That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows:
SEE ATTACHED EXHIBIT “B” WHICH IS HEREBY INCORPORATED BY REFERENCE AND MADE A PART HEREOF.

Exhibit “B” is an affidavit of a detective which specifically describes the content of certain films alleged to be obscene.

The state argues that the affidavit, attached to the search warrant, cured the vagueness of the warrant. The circuit judge disagreed on the ground that “.. . the fact that the affidavit in support of the search warrant is incorporated in various parts of the search warrant does not cure the deficiency in that the affidavit was not incorporated or made part of the aforesaid portion of the search warrant which was designed to describe the items to be seized.”

We find this case is controlled by Booze v. State, 291 So.2d 262, 263 (Fla. 2d DCA 1974), cert. denied, 297 So.2d 836 (Fla.1974), cert. denied, 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974), holding as follows:

An admittedly sufficient affidavit resulted in the issuance of a search warrant in which the description of the premises to be searched and the property to be seized were not stated above the judge’s signature. The warrant did state, however, that “the affidavit for search warrant made by Officer George William Leake and Randy Rabe is hereby made a part of this search warrant and a copy is attached.”
We hold this a good warrant. Incorporation by reference is a perfectly acceptable means of avoiding the repetition of language set forth elsewhere. Any officer armed with this warrant, to which the affidavit was attached and, by the issuing judge, made a part of the warrant, could go unerringly to the property and seize the property particularly described. Joyner v. City of Lakeland, Fla.1956, 90 So.2d 118.

There is no mention or importance attached in Booze as to which section of the search warrant contained the clause which incorporated the affidavit by reference. A fair reading of this entire warrant and incorporated affidavit leaves no doubt as to the specific items to be seized. Here, as in Booze, “any officer armed with this warrant, to which the affidavit was attached and, by the issuing judge, made a part of the warrant, could go unerringly to the property and seize the property particularly described.”

Accordingly, we find that the circuit judge departed from the essential requirements of law in reversing the county court judgment. Certiorari is granted with instructions to reinstate the judgment of the county court.

BOARDMAN, A. C. J., and CAMPBELL and SCHOONOVER, JJ„ concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    STATE of Florida, Sunland Center and Division of Risk Management, Appellants, v. Blanche CAMPBELL, Appellee.
    No. AB-356.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.

      Bernard J. Zimmerman and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    George J. Adler of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier challenge a workers’ compensation order, contending that the deputy commissioner (deputy) erred in awarding the claimant temporary total disability (TTD) benefits from February 21, 1980, to July 29, 1980; in awarding wage loss benefits from August 1, 1980, and continuing; and in ordering reimbursement of taxable costs. We reverse, in whole or in part, each of these awards, except the award of reimbursement of taxable costs.

The claimant suffered a compensable injury on September 5, 1979, and first sought treatment for the injury on September 13, 1979. Her physician, Dr. Evans, could find no anatomic change attributable to the accident, but he provided conservative care and, on three occasions, recommended that claimant remain off the job for periods of a week to two weeks. Claimant worked intermittently during those periods when she was not under Dr. Evans’ restriction. As of November 21, 1979, Dr. Evans was still unable to find objective signs of injury, so he discharged claimant for referral to an orthopedic specialist.

Claimant next sought treatment from Dr. Stanford, an orthopedic surgeon. Stanford determined that claimant had a slight loss of muscle mass of the left leg and a mild limitation of range of motion of the spine. He diagnosed chronic low back strain, but advised claimant that she could continue working. Stanford subsequently hospitalized claimant for a week of conservative treatment but on February 20, 1980, he discharged her to return to work without restriction. Because claimant continued to have a limited range of motion of the spine, Dr. Stanford determined that she had a three percent (3%) permanent impairment of the body as a whole. However, he attributed the impairment to her chronic low back strain, and could not associate the impairment with the industrial accident within reasonable medical probability. On February 21, 1980, claimant quit her job with the employer, claiming that she was no longer able to perform her duties.

On June 6, 1980, claimant sought further treatment from Dr. Urrichio, another orthopedic surgeon. Dr. Urrichio performed a thorough examination, and ordered testing by electromyogram, but could find no objective signs of injury. Dr. Urrichio provided conservative care and prescribed, inter alia, weight loss and exercise. At no time during his treatment of claimant did Dr. Urri-chio feel that she was unable to work, and on July 29, 1980, he actually advised her that her condition would improve if she returned to work. Dr. Urrichio felt that the claimant’s range of motion was normal for a person of her weight, and he believed that there was a reasonable medical probability that claimant had no anatomic impairment resulting from her industrial accident. Dr. Urrichio found that claimant had reached maximum medical improvement (MMI) on or before September 10,1980, the date he discharged her to return to work.

TTD benefits are payable only for the healing period during which a claimant is totally disabled and cannot work due to the injury. Where there is no medical evidence of inability to work, the claimant can establish entitlement to TTD benefits only by demonstrating that she has conscientiously attempted to obtain employment. Tallahassee Coca-Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Here, claimant admitted that she did not attempt to obtain any employment from February 20, 1980, until sometime in August, 1980. Her testimony that she was unable to work is insufficient to support an award of TTD benefits. Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981). Because no work search was conducted, and because no rational interpretation of the medical evidence could lead to a conclusion that claimant was not able to work, the award of TTD benefits from February 20, 1980 to July 29, 1980 is reversed.

The deputy found that claimant reached MMI on September 10, 1980, and awarded wage loss benefits from August 1, 1980 and continuing. An award of wage loss benefits for any period prior to a claimant’s MMI date is an award of temporary partial disability (TPD) benefits and is not dependent upon a finding that claimant has suffered permanent impairment. Therefore, the award of wage loss benefits for the period of TPD from August 1, 1980 to September 10, 1980 is affirmed. However, a claimant must show the existence of permanent impairment in order to establish entitlement to wage loss benefits for any period after her MMI date. In this case, the deputy’s award of continuing wage loss benefits for the period after claimant’s MMI date was erroneous, because the evidence is insufficient to support a finding that claimant suffered any permanent impairment as a result of her industrial accident.

Permanent impairment is defined in Section 440.02(21), Florida Statutes (1979) as “any anatomic or functional abnormality or loss, existing after the date of maximum medical improvement, which results from the injury.” The pertinent portions of Section 440.15(3), Florida Statutes (1979) state:

(3) PERMANENT IMPAIRMENT AND WAGE-LOSS BENEFITS.—
(a) Impairment benefits.
3. In order to .. . establish more certainty and uniformity in the rating of permanent impairment, the Division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. The schedule shall be based on generally accepted medical standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association’s Guides to the Evaluation of Permanent Impairment. On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, copyright 1977, 1971, by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereof.
(b) Wage-loss benefits.—
1. Each injured worker who suffers any permanent impairment, which permanent impairment is determined pursuant to the schedule adopted in accordance with subparagraph 3 of paragraph (a), may be entitled to wage-loss benefits under this subsection. Such benefits shall be based on actual wage-loss ....
2. ... Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.

Dr. Urrichio testified that there was a reasonable medical probability that claimant did not have any permanent impairment attributable to the accident. He associated claimant’s limited range of motion with her obesity, and made no medically or scientifically demonstrable finding of impairment due to anatomic change. In effect, his testimony was that claimant’s range of motion was normal for a person of her physique. Dr. Stanford assigned claimant a rating of three percent (3%) permanent impairment to the body as a whole, based solely on the finding that she had a limited range of motion. His testimony with respect to causation was that it was “reasonable to assume” that the accident contributed to some portion of claimant’s impairment. In view of the fact that Dr. Stanford would not attribute any of claimant’s impairment to her industrial accident within reasonable medical probability, it must be held that his nebulous and imprecise testimony was insufficient to establish the causal connection. Kashin v. Food Fair, 97 So.2d 609 (Fla.1957). It thus appears that claimant has failed to carry her burden of establishing that she has an accident-related permanent impairment entitling her to wage loss benefits under § 440.15(3), Fla. Stat. (1979).

Affirmed in part and reversed in part.

MILLS, J., concurs.

WENTWORTH, J., concurring and dissenting.

WENTWORTH, Judge,

concurring and dissenting.

I concur in the majority opinion only insofar as it affirms temporary partial disability benefits, in part, and concludes that claimant has not established entitlement to an award of temporary total disability benefits. The testimony of the medical experts does not suggest that claimant was physically incapable of employment, and claimant admittedly failed to seek work during the time for which temporary total benefits were awarded. The claimant’s testimony does not support temporary total disability and those benefits should not have been awarded in these circumstances. Cf., Duro Paperbag Manufacturing Co. v. Graham, 415 So.2d 809 (Fla. 1st DCA 1982); Square G Construction Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982). However, reversal of the temporary total award does not preclude the possibility of claimant’s entitlement to temporary partial disability benefits for the period of time in question, and the cause should in my opinion be remanded for the deputy to consider the applicability and effect of § 440.15(4)(b), Florida Statutes, regarding “deemed” earning ability upon a claimant’s voluntary limitation of income. See Duro Paperbag, supra; Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

As to that portion of the award relating to wage-loss after maximum medical improvement, such award is clearly dependent upon the existence of a permanent impairment. See § 440.15(3)(b)l, Florida Statutes. In the present case Dr. Stanford expressed the opinion that claimant has a permanent impairment of 3% of the body as a whole, and that a portion of this 3% impairment was caused by claimant’s industrial injury. Although Dr. Stanford did not assign any specific percentage to the effect of the industrial injury alone, wage-loss benefits are not dependent upon a specific degree of impairment and the lack of such a quantitative determination does not require reversal of a wage-loss award. Cf., Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981). I would conclude that the award of wage-loss benefits subsequent to maximum medical improvement is not in error.

Accordingly, I would reverse the order appealed only insofar as it awards temporary total disability benefits. I would otherwise affirm the order, and remand the cause for the deputy to consider the applicability and effect of § 440.15(4)(b).


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    FRANKLIN MANOR APARTMENTS and Liberty Mutual Insurance Company, Appellants, v. Timothy J. JORDAN, Appellee.
    No. AH-379.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.

      Keith A. Mann, Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   LARRY G. SMITH, Judge.

This is an appeal from an order awarding claimant temporary total disability benefits and remedial psychiatric care. We reverse the award of all benefits to claimant as the record conclusively shows that the aggravation of claimant’s psychiatric condition is not causally related to his industrial injury.

Claimant began having trouble with his right elbow in 1972. Finally, Dr. Hatt, an orthopedist, recommended surgery in 1978. However, because claimant was exhibiting a psychiatric disturbance, Dr. Hatt had claimant see Dr. Slocum, a psychiatrist, before doing surgery. The psychiatric evaluation revealed that claimant used his elbow as an excuse when he could not do things as quickly or as thoroughly as someone else. Because of this, Dr. Slocum felt that claimant’s concept of himself might suffer if his elbow was repaired and he could no longer use it as an excuse. After learning this, Dr. Hatt declined to perform surgery on claimant’s elbow.

On June 4, 1979, claimant fell at work and injured his right elbow. He was treated by Dr. Kauffman, an orthopedic surgeon. While under Dr. Kauffman’s care, claimant focused an excessive amount of attention on his elbow and related many imaginary symptoms to the doctor. Although he felt that claimant had only sustained bruises and contusions to his elbow as a result of his industrial accident, Dr. Kauffman undertook, at claimant’s vehement insistence, the surgical repair of the elbow, but only did so after receiving a second opinion about the matter. Neither Dr. Kauffman, nor the carrier who authorized the surgery knew about claimant’s prior medical and psychiatric history. The surgery did not disclose any profound damage to the elbow and claimant was left without any significant permanent anatomic disability. However, the deputy commissioner, relying on Dr. Slocum’s testimony concerning claimant’s post-accident psychiatric condition, determined that claimant had, as earlier predicted, suffered an aggravation or acceleration of his preexisting psychiatric disability as a direct and proximate result of the surgery to his elbow. Consequently, he awarded claimant temporary total disability benefits and remedial psychiatric care.

It has long been the law in this state that for post-traumatic neurosis to be com-pensable, it must be the direct and immediate result of the industrial injury and not merely remotely connected with the injury. Superior Mill Work v. Gabel, 89 So.2d 794, 795 (Fla.1956). In Gabel, the claimant suffered from varicose veins in both legs. He had had thrombophlebitis in his left leg in 1950 for which he had been hospitalized. In 1953 he suffered an industrial injury to his right leg which resulted in thrombophlebitis in his right leg and a pulmonary embolism. He again suffered thrombophlebitis in his right leg in 1954 which was corrected by a ligation of the saphenous vein to avert a pulmonary embolus from developing. The claimant developed a fear that if he resumed his usual employment he would develop thrombophlebitis in his left leg and another pulmonary embolus and he sought compensability for this anxiety neurosis. The Supreme Court reversed the award of compensability reasoning that claimant’s anxiety neurosis was too remote from his industrial injury. In so holding, the court pointed out that the medical evidence was not clear, and the deputy commissioner did not specifically find, that the second episode of thrombophlebitis (1954) in his right leg was the result of the 1953 industrial accident. The court also reasoned that claimant’s industrial injury could not possibly have resulted in the thing feared (a pulmonary embolus) because the saphenous ligation performed in 1954 would prevent a pulmonary embolus from developing as a result of a blood clot in the claimant’s right leg.

Here, the aggravation of claimant’s psychiatric condition is the direct and proximate result of surgery which was performed to correct a condition that preexisted claimant’s industrial injury. The bruises and contusions suffered by claimant in his industrial accident did not necessitate the surgery. The doctor who treated claimant for these bruises and contusions did not feel that surgery was required and only relented when claimant insisted his elbow be surgically repaired. Under the circumstances, the aggravation of claimant’s psychiatric condition is only incidentally related to his industrial injury and the finding of com-pensability must be

REVERSED.

JOANOS and THOMPSON, JJ., concur.

      . The carrier’s claims supervisor testified at the hearing held before the deputy that the company would not have authorized Dr. Kauffman to perform surgery if it had known about claimant’s previous medical history. We do not view this lack of knowledge as significant under the circumstances of this case.


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    INDIAN RIVER COUNTY SHERIFF’S DEPARTMENT, Appellant, v. Marlene ROSKE, Appellee.
    No. AI-3.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.

      James T. Walker, of Brennan, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for appellant.
    Vincent A. Lloyd, of Lloyd, Brown, Hos-kins & Becht, Fort Pierce, for appellee.
   PER CURIAM.

The employer/carrier (E/C) appeal a workers’ compensation order finding that claimant sustained a compensable emotional injury on February 6, 1981.

There must be an actual physical injury or trauma upon which to predicate compensation for a neurosis. See Superior Mill Work v. Gabel, 89 So.2d 794 (Fla.1956); Williams v. Hillsborough County School Board, 389 So.2d 1218 (Fla. 1st DCA 1980), pet. for rev. den., 397 So.2d 780 (Fla.1981); Sunland Training Center — Miami v. Johnson, 9 FCR 172, cert. den. 315 So.2d 477 (Fla.1975). There is no competent substantial evidence to show that claimant suffered a physical injury or trauma which precipitated her mental condition. The finding of compensability is therefore reversed.

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


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    Michael Maurice MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. AI-366.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed because no direct appeal lies from a judgment and sentence based on a guilty plea, Rule 9.140(b), Fla.R. App.P., and because appellant failed to make a prior motion to withdraw his guilty plea in the court below. Robinson v. State, 373 So.2d 898 (Fla.1979). This dismissal is, however, without prejudice to appellant’s filing an appropriate motion for post-conviction relief, pursuant to Rule 3.850, Fla.R. Crim.P. See, Graff v. State, 389 So.2d 333 (Fla. 5th DCA 1980); Counts v. State, 376 So.2d 59 (Fla. 2nd DCA 1979); Honeycutt v. State, 359 So.2d 503 (Fla. 2nd DCA 1978).

DISMISSED.

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


author: SHIVERS, Judge.

text:
    Joseph L. MATTINGLY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-353.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Joseph L. Mattingly, in pro. per.
    Catherine L. Dickson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   SHIVERS, Judge.

Mattingly seeks review of the Commission’s order establishing a PPRD of November 26, 1985. We reverse and remand.

The record reveals appellant was convicted of three counts of armed robbery, one of which was used as the present offense of conviction. The Commission then aggravated appellant’s presumptive parole release date for two additional counts of armed robbery and for using a firearm in each of the offenses. We find the Commission erred in assessing aggravation time for the use of a firearm. First, factors used in the definition of the present offense of conviction cannot be utilized to aggravate a prisoner’s presumptive parole release date. Rule 23-19.03, FAC; Section 947.165(1). Second, the Florida Parole and Probation Commission rules do not permit additional aggravation for factors included in the definition of other convictions already used as aggravating elements. Accordingly, the order establishing the presumptive parole release date is reversed and the cause remanded to the Commission with instructions to establish a presumptive parole release date consistent with this opinion.

McCORD and MILLS, JJ., concur.


text:
    Lydia Maria DELACEY and Duward Belmont Delacey, Appellants, v. STATE of Florida, Appellee.
    No. AJ-152.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.

      Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellants.
    Jim Simth, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

The judgment of conviction is affirmed on the authority of Hill v. State, 1982 FLW 325 (Florida Supreme Court, Case No. 60,-144, opinion filed July 15,1982).

MILLS, BOOTH and THOMPSON, JJ., concur.


text:
    Jimmy L. LUMLEY, Appellant, v. Sandra Leigh LUMLEY, Appellee.
    No. AJ-374.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Dedee S. Costello, Panama City, for appellant.
    Robert S. Staats, Panama City, for appel-lee.
   MILLS, Judge.

The husband challenges the amount of lump sum alimony granted the wife in this dissolution of marriage. We affirm.

The record does not clearly reveal that the award, although very generous, was an abuse of discretion.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    Clifford Allen CHESSER, Appellant, v. Ronnie W. DOUGHERTY, Sheriff of Nassau County, Florida, Appellee.
    No. AK-178.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Louis 0. Frost, Jr., Public Defender; Gerald S. Bettman, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Chesser appeals the trial court’s denial of his petition for writ of habeas corpus in an extradition proceeding. He contends that Governor Graham’s rendition warrant was defective because it was based on an arrest warrant which was issued without probable cause. We affirm.

“Once the governor of the asylum state has acted on a requisition for extradition based on the demanding state’s judicial determination that probable cause existed, no further inquiry may be had on that issue in the asylum state.” Michigan v. Doran, 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528 (1978). Also see Stack v. State ex rel. Morgan, 381 So.2d 366 (Fla. 4th DCA 1980), and State ex rel. Meyers v. Miller, 388 So.2d 1358 (Fla. 5th DCA 1980).

Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. Michigan v. Doran, supra.

The justice of the peace in this case stated that the arrest warrant was issued “for sufficient causes made known to me in the above affidavit.” This language constitutes a sufficient judicial determination of probable cause. Compare Michigan v. Dor-an, supra.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


text:
    Richard Lee DART, Appellant, v. STATE of Florida, Appellee.
    No. AL-228.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1982.
    Richard Lee Dart, in pro. per., for appellant.
    Jim Smith, Atty. Gen., Lawrence Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   ON MOTION FOR REHEARING/MOTION TO RECALL MANDATE

PER CURIAM.

The Motion for Belated Rehearing/Motion to Recall Mandate filed more than fifteen (15) days from the date of the issuance of the decision in this cause is stricken as untimely. Fla.R.App.P. 9.330(a); Rogers v. State Farm Mut. Automobile Ins. Co., 390 So.2d 138 (Fla. 5th DCA 1980). However, upon its own motion, the Court has determined to reconsider its earlier decision, 415 So.2d 846, rendered in this cause and has withdrawn the mandate.

The State has now filed with this Court the information accusing appellant of sexual battery and burglary with intent to commit an assault, and it would serve no useful purpose to remand the case to the trial court for that court to attach the information to its order. This accusatory pleading conclusively reveals that the charge of sexual battery is not subsumed in the charge of burglary with intent to commit an assault, for the charging allegations of latter offense do not state that appellant assaulted the victim by committing a sexual battery. See McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982).

There being no need for further proceedings by the trial court, we affirm the judgment of the trial court.

AFFIRMED.

McCORD, MILLS and SHIVERS, JJ., concur.


text:
    FLORIDA WELDING & ERECTION SERVICE and U. S. Fidelity & Guaranty Company, Appellants, v. Jerald MARTIN, Appellee.
    No. AH-24.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    John R. Gierach of Gierach & Ewald, Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding temporary total disability benefits from the date of the accident and continuing, evaluation and treatment “if necessary” by an additional physician, and reserving jurisdiction to award attorney’s fees. We reverse the award of temporary total disability benefits subsequent to July 18, 1980, as the deputy’s finding that claimant had not reached maximum medical improvement by that date from his February 15, 1980 industrial accident was not supported by competent substantial evidence. See Ardmore Farms, Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981); Sunland Training Center v. Hicks, IRC Order 2-3443 (1978), cert. denied, 368 So.2d 1368 (Fla.1979). The deputy also erred in awarding an evaluation and treatment “if necessary” by Dr. DeWitt Stanford after ruling orally at the hearing that claimant’s motion for such evaluation would not be heard because of the lack of prior notice to the employer/carrier. G & S Packing Company v. Driggers, 382 So.2d 446, 447 (Fla. 1st DCA 1980). Finally, the finding that claimant’s attorney was entitled to a reasonable fee must also be reversed, as the employer/carrier did not “den[y] that an injury occurred for which compensation benefits are payable,” and there is no other basis for such an award in this case. Section 440.34(2)(c), Florida Statutes (1979).

REVERSED.

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


text:
    RASCAL HOUSE RESTAURANT, Appellant, v. Margaret STEPHENS, Appellee. LATIN AMERICAN HOME HEALTH, INC., Appellant, v. Juana LOREDO, Appellee.
    Nos. AH-365, AH-428.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    Susan J. Silverman of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee Stephens.
    Carlos E. Casuso, of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appel-lee Loredo.
   PER CURIAM.

Affirmed. Carballo v. Warren Mfg. Co., 407 So.2d 603 (Fla. 1st DCA 1981).

McCORD, ERVIN and JOANOS, JJ., concur.


text:
    MISENER MARINE CONSTRUCTION and Maryland Casualty Company, Appellants, v. John HALL, Appellee.
    No. AH-394.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    Bernard J. Zimmerman and Michael M. O’Brien, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Irvin A. Meyers, of Meyers, Mooney, Adler & Hammond, P. A., Orlando, for ap-pellee.
   PER CURIAM.

Affirmed. Appellee’s motion to dismiss the appeal is denied. Appellee granted $1,000 in attorney’s fees.

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


text:
    GULF & WESTERN FOOD PRODUCTS and National Employers Company, Appellants, v. Audley CAMPBELL, Appellee.
    No. AI-125.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellants.
    Kevin F. Richardson of Shelton Clyatt, Jr., P. A., West Palm Beach, for appellee.
   PER CURIAM.

The employer/carrier appeals a workers’ compensation order awarding temporary partial disability benefits and directing the employer/carrier to “continue to provide the claimant with medical care in a manner consistent with Section 440.13,” Florida Statutes. The applicable portion of the order does not specify the dates for which such benefits are payable. As the deputy properly found that claimant reached maximum medical improvement on October 16, 1981, from his April 4, 1980 industrial accident, the order is hereby amended to specifically terminate all temporary benefits and remedial medical care pursuant to Section 440.13, Florida Statutes, on that date. The employer/carrier’s remaining points on appeal are without merit. As amended, the order below is affirmed.

MILLS, BOOTH and THOMPSON, JJ, concur.


author: McCORD, Judge. JOANOS, Judge,

text:
    STATE of Florida, Appellant, v. Wilbur SPEIGHTS, Appellee.
    No. AI-200.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    Jim Smith, Atty. Gen, Carolyn M. Snur-kowski, Asst. Atty. Gen, Tallahassee, for appellant.

      Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.
   McCORD, Judge.

The appellee was charged by information with burglary in that on July 29, 1981, he did “unlawfully enter or remain in a structure, to wit: the mobile home, the property of (the victim) with intent to commit therein an offense, in that the entry of the structure was gained stealthily and without consent of said (victim), contrary to Florida Statute 810.02.” The trial court granted appellee’s motion to dismiss the information on the ground that it failed to charge a specific offense as a part of the charge of burglary and, as such, was fatally defective. Thus, the question presented by this appeal is whether the allegations of the information were sufficient to allege a violation of the burglary statute, section 810.02(3), Florida Statutes.

Another panel of this Court has recently concluded that the State must reduce to a specific offense the nature of the offense charged as a part of a burglary information. State v. Clark, 416 So.2d 13 (Fla. 1st DCA 1982). We adopt this view. Accord Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). Nevertheless, we recognize that the Fourth District Court of Appeal has indicated a contrary result in dicta. State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980). In view of this implicit conflict as to the necessity in a burglary prosecution for the State to allege and prove an intent to commit a specific offense, we hereby certify to the Florida Supreme Court the following question of great public importance:

In a prosecution for burglary under section 810.02, Florida Statutes (1981), is it necessary for the State to allege an intent to commit a specific offense?

The trial court’s order dismissing this information is AFFIRMED.

ERVIN, J., concurs.

JOANOS, J., dissents in part and concurs in part.

JOANOS, Judge,

dissenting in part and concurring in part.

The trial court should be reversed because the information was not defective. The correct interpretation of the requirements for the charging of the crime of burglary in an information is set out in State v. Fields, 390 So.2d 128, at page 131 (Fla. 4th DCA 1980).

I concur in the determination that the question set out in the majority opinion should be certified to the Florida Supreme Court as a question of great public importance.

      . The status of “dicta conflict” under Article V, Section 3(b)4, of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)vi, has yet to be definitely resolved. England, Hunter & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147, 189 (1980); England & Williams, Florida Appellate Reform One Year Later, 9 F.S.U.L.Rev. 221, 244 (1981). Accordingly, we decline to certify that our decision expressly conflicts with State v. Fields, supra.


text:
    HOBOKEN DRYWALL COMPANY and Commercial Union Insurance Company, Appellants, v. Jesse Allen TELFAIR, Appellee.
    No. AI-258.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.

      W. Douglas Childs and Robert M. Sharp of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville, for appellants.
    Paul D. Srygley and Jon D. Caminez, Tallahassee, for appellee.
   PER CURIAM.

The employer/carrier seek to appeal a non-final order granting claimant’s motion for change of venue from Broward to Leon County. We treat the appeal as a petition for writ of certiorari and accept jurisdiction under rule 9.030(b)(2)(A), Florida Rules of Appellate Procedure. Mills Electric Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); Early Bird Stud Farm v. Decker, 416 So.2d 860 (Fla. 1st DCA 1982).

Our review shows that the alleged injury occurred in Broward County, that the employer/carrier did not receive notice of the claim or the motion for change of venue and did not agree to the change. Section 440.25(3)(b), Florida Statutes (1981), provides that the claim hearing “shall be held in the county where the injury occurred, if the same occurred in this state, unless otherwise agreed to between the parties and authorized by the deputy commissioner in the county where the injury occurred.” The order granting the requested change of venue without the agreement of both parties was error.

REVERSED and REMANDED for proceedings consistent with this opinion.

SHIVERS, SHAW and WIGGINTON, JJ., concur.


author: THOMPSON, Judge. MILLS, Judge,

text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, State of Florida, Appellant, v. SUNSHINE JUNIOR STORES, INC. and Morrison Assurance Company, Appellees.
    No. AI-372.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.

      6. W. Jacobs, Tallahassee, for appellant.
    James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellees.
   THOMPSON, Judge.

The Special Disability Trust Fund (Fund) appeals and the employer/carrier (E/C) cross-appeal an order of the deputy commissioner (deputy) allowing the E/C to be partially reimbursed for wage loss benefits paid to the claimant. We affirm both the appeal and the cross-appeal.

The claimant sustained a compensable injury on January 25, 1980. After reaching maximum medical improvement (MMI), he was paid wage loss benefits, the first of such payments being made on December 29, 1980, and subsequent payments being made on January 27, 1981, March 5, 1981, March 30, 1981, May 8, 1981, May 18, 1981, and June 4, 1981. On June 29, 1981, the E/C filed a claim with the Fund for reimbursement of a percentage of the benefits paid to the claimant.

The Fund contends that § 440.49(2)(g), Fla.Stat. (1979) bars any right to reimbursement unless the claim for wage loss benefits is filed within 60 days from the date of the first payment and as this claim was not timely filed, the right to any reimbursement is barred. The E/C contends on cross-appeal that § 440.49(2)(g) is applicable only to claims for reimbursement of permanent partial disability and does not apply to reimbursement of wage loss benefits under § 440.15(3), Fla.Stat. (1979). The deputy found that the claim for reimbursement against the Fund is barred only as to payments made over 60 days prior to June 29, 1981, the date of the first notice to the Fund. We do not agree with either position and affirm the deputy’s award of partial reimbursement.

In cases prior to the 1979 amendment to § 440.15(3), Fla.Stat., a claimant reaching MMI with a permanent disability was awarded a certain fixed number of weeks permanent partial compensation based either on the schedule or on a certain percentage of disability as the result of anatomical rating or loss of wage earning capacity. Once the permanent partial disability rating was determined, the carrier knew the full extent of its liability for permanent partial disability unless there was a subsequent modification. In the 1979 amendment to § 440.15(3), the legislature did away with the payment of permanent partial disability benefits based on the schedule or on an anatomical or loss of wage earning capacity disability rating and substituted in lieu thereof the payment of wage loss benefits. Under the new law, the claimant may be entitled to wage loss benefits after he has reached MMI if he has sustained a permanent impairment and sustains an actual wage loss. Requests for wage loss benefits must be filed monthly and each claim is a separate claim. At the time the first wage loss benefit is paid the carrier generally has no idea of the extent of its future liability for wage loss benefits.

Although § 440.15(3) was drastically changed, no material changes were made in § 440.49(2)(g). When construing a statute capable of more than one interpretation, courts look to the legislative intent if it can be determined. The intent of the legislature in creating the Fund is specifically stated in § 440.49(2)(a):

(a) Legislative intent. — It is the purpose of this subsection to encourage the employment of the physically handicapped by protecting employers from excess liability for compensation and medical expense when an injury to a handicapped worker merges with his preexisting permanent physical impairment to cause a greater disability, permanent impairment, or wage loss than would have resulted from the injury alone. The division shall inform all employers of the existence and function of the fund and shall interpret eligibility requirements liberally. However, this subsection shall not be construed to create or provide any benefits for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsection, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund, (emphasis added)

We hold that § 440.49(2)(g) is applicable to the reimbursement of wage loss benefits. However, as each claim for each month’s wage loss benefits is a separate claim which is not mature and payable by the carrier until filed, § 440.49(2)(g) bars only those claims for reimbursement of wage loss benefits paid more than 60 days before the first notice of claim for reimbursement to the Fund. We therefore affirm the deputy’s order on both the appeal and cross-appeal.

AFFIRMED.

BOOTH, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. I would reverse the deputy’s order.

I agree with the majority that the legislature’s intent in creating the Fund is stated in Section 440.49(2)(a), Florida Statutes (1981). Although not stated by the majority, it was also the legislature’s intent that Section 440.49(2)(g), Florida Statutes (1981), apply to wage loss payments. This is clear because Section 440.15(3), Florida Statutes (1981), refers to permanent impairment and wage loss benefits; therefore, payments for wage loss are compensation for permanent disability.

The legislature did not change the 60-day filing limitation provided in Section 440.-49(2)(g). To do what the majority has done is to legislate. This Court has no authority to do this.

Section 440.49(2)(g) is a statute of non-claim and clearly bars any right to reimbursement unless the claim is filed prior to 60 days from the date of the first payment. This claim was not timely filed, thus, any right to reimbursement is barred forever. See Special Disability Trust Fund v. Brevard County Board of Public Instruction, 9 FCR 164 (1975), cert. denied, 320 So.2d 392 (Fla.1975), and Special Disability Trust Fund v. Harrison, 380 So.2d 493 (Fla. 1st DCA 1980).

The Industrial Relations Commission construed Section 440.49(4)(g), Florida Statutes (1974), the statutory predecessor of Section 440.49(2)(g), in Special Disability Trust Fund v. Brevard County Board of Public Instruction, supra. It was expressly held there that where excess permanent compensation is paid by the employer/carrier without an award, the right to reimbursement is barred forever unless the employer/carrier file their claim prior to 60 days from the date of the first payment. In interpreting an even earlier version of Section 440.-49(4)(g), the Florida Supreme Court, in McConnell Wetenhall Citrus Properties v. Special Disability Trust Fund, 304 So.2d 112 (Fla.1974), held that the purpose of the time limitation is to protect the Fund against stale claims and to provide an opportunity for prompt investigation of the claim.

If this is so, then the whole policy underlying this time limitation would be thwarted by the majority’s opinion. There appears to be no clear reason for distinguishing between claims for wage loss and other types of claims. I would not impute such an intent to the legislature, absent some clearer language to that effect.

Accordingly, I would reverse the order of the deputy commissioner and hold that the employer/carrier’s claim for reimbursement is totally barred by Section 440.49(2)(g).


author: WIGGINTON, Judge.

text:
    Dean D. BURGESS, Appellant, v. Foster F. BURGESS, Appellee.
    No. AJ-59.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    J. LaDon Dewrell and F. Lloyd Blue, Jr., of Dewrell, Blue & Brannon, Fort Walton Beach, for appellant.
    Henry Clay Mitchell, Jr., of Levin, War-field, Middlebrooks, Mabie & Magie, P.A., Pensacola, for appellee.
   WIGGINTON, Judge.

Appellant, Mrs. Burgess, appeals from the order of the trial court reluctantly dismissing her cause of action for civil damages brought under Section 934.10, Florida Statutes (1979), as being precluded by Raisen v. Raisen, 379 So.2d 352 (Fla.1979) and the doctrine of interspousal tort immunity.

In 1979, Mr. Burgess filed his complaint for dissolution of marriage in which he stated “the marriage was irretrievably broken.” While he and Mrs. Burgess were separated pending final dissolution, Mr. Burgess allegedly stole into the family home, climbed into the attic and spliced an electric device onto the telephone lines in order to intercept and record Mrs. Burgess’ telephone conversations. He then allegedly played the recordings to neighbors, and used them to his advantage during the dissolution proceedings.

Mrs. Burgess filed a complaint pursuant to Section 934.10 based on Mr. Burgess’ alleged willful interception and willful disclosure of her telephone communications. Mr. Burgess, relying on Raisen, filed a motion to dismiss, claiming the doctrine of interspousal immunity precluded the action. The trial judge dismissed the complaint with prejudice despite his opinion that “the philosophy of the immunity doctrine should not be applied to the facts of this action.”

The “philosophy” behind the doctrine of interspousal immunity enunciated in Raisen and recently reiterated in Hill v. Hill, 415 So.2d 20 (Fla. 1st DCA 1982); Roberts v. Roberts, 414 So.2d 190 (Fla.1982); and West v. West, 414 So.2d 189 (Fla.1982), embraces family harmony and its resources. Of utmost concern to the supreme court is the disturbing effect interspousal tort actions would have on domestic tranquility and the propensity toward promotion of trivial actions and fraudulent claims. Although it has recognized that a wronged or abused spouse is entitled to relief manifesting itself in the discretion of the trial court during the dissolution proceeding, or coming about by way of a criminal action, the supreme court has firmly denied recovery of money-damages by an aggrieved spouse in a civil action. See, e.g., Hill v. Hill, and Markham v. Markham, 265 So.2d 59 (Fla. 1st DCA 1972), aff’d, 272 So.2d 813 (Fla.1973); and see generally, United States v. Jones, 542 F.2d 661 (6th Cir. 1976). As was stated succinctly in Raisen, the doctrine of inter-spousal tort immunity “precludes a tort action between husband and wife in all cases (emphasis added).” 379 So.2d at 355.

With that definitive statement, the supreme court has left us with no choice but to affirm the trial court’s order dismissing Mrs. Burgess’ cause of action on the basis of Raisen. However, as did the trial judge, we do so reluctantly, for our feeling is that under the particular circumstances of this case, a departure from Raisen would do no “real damage” to the doctrine or its philosophy. Shor v. Paoli, 353 So.2d 825, 826 (Fla.1977).

As mentioned above, the tension in this area arises over the civil cause of action for damages brought by one spouse against the other. Chief among the reasons traditionally assigned as justification for the doctrine is the promotion of peace and harmony in the home and the avoidance of fraudulent or collusive claims. It would appear to us, however, that where these traditional reasons are found not viable in a particular case, or are overshadowed by a more compelling statutorily created interest or constitutionally protected right, the doctrine of interspousal immunity should not apply. We feel that Mrs. Burgess’ cause of action is one such particular case.

Chapter 934, Florida Statutes (1979), under which Mrs. Burgess filed her claim for damages, has as its purpose the protection of privacy of wire and oral communications and the safeguarding of the privacy of innocent persons. Section 934.01(2) and (4). To further that purpose, the legislature provided a civil cause of action for damages to

[a]ny person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter . .. against any person who intercepts, discloses, or uses ... such communications ...

(emphasis added).

The use of the word “any” by the legislature would appear to be positive and unambiguous language abrogating, at least indirectly, interspousal tort immunity in this case. Moreover, we question whether the traditional justifications for immunity should not be subordinated to the more compelling privacy interests of this individual.

The promotion of peace and harmony in the family home is not a viable consideration under the circumstances of this case. Mr. Burgess conducted his alleged midnight excursions into the attic of the family home during the course of the dissolution proceedings. The marriage already suffered discordance; the policy of fostering marital peace and harmony is hardly supported by a rule allowing interspousal wiretapping. Accord State v. Jock, 404 A.2d 518 (Del.1979).

Also, fraud against insurers is unlikely here. Practically speaking, insurance coverage is not available for intentional torts. Moreover, it is hard to believe that Mrs. Burgess colluded with her husband to have her private conversations recorded and played before her neighbors so that she might maintain a cause of action for damages under Section 934.10.

Finally, it is our considered opinion that the privacy interest here should prevail over the policy reasons behind the doctrine of interspousal tort immunity. We are not concerned with a question of married women’s rights, but with whether any spouse must suffer the indignation of invasion of his or her right to hold a private telephone conversation without redress, solely because the wires were tapped by their husband or wife. Granted, Mrs. Burgess could have leveled criminal charges against Mr. Burgess pursuant to Section 934.03(l)(d), which makes such conduct a felony of the third degree; or, Mrs. Burgess could have obtained relief in the dissolution proceedings under Markham and Hill. However, it would seem to be the unequivocal intent of our legislature to prohibit any person from intercepting any person’s oral communication. See generally State v. Tsavaris, 394 So.2d 418, 422 (Fla.1981).

Therefore, because of our stated reservations, although we affirm the order of the trial court, we certify the following question to the Florida Supreme Court as being one of great public importance:

Does the doctrine of interspousal tort immunity bar a civil cause of action for money damages brought by one spouse against the other spouse, under Section 934.10, Florida Statutes (1979)?

SHIVERS and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    TAVARES GROVE CARE and Florida Farm Bureau Insurance Company, Appellants, v. Kenneth SIMMONS, Appellee.
    No. AJ-135.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1982.
    James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   ERVIN, Judge.

In this workers’ compensation appeal, the employer/earrier raises four points from the order entered. We affirm as to the first two points raised, finding competent and substantial evidence supporting the order as it relates to those two asserted errors. As to the fourth point, alleging error in awarding claimant costs, interest and attorney’s fees, we note that the deputy retained jurisdiction only for that purpose, hence that portion of the order is not yet final and will not be considered by us in this appeal. See Mills Electrical Contractors v. Marthens, et al., 417 So.2d 700 (Fla. 1st DCA 1982).

The third point on appeal attacks the decretal portion of the order which directed the employer/earrier to “[p]ay to the claimant temporary total benefits from May 24, 1981 and continuing, at the rate of $217.75 per week.” The appellee concedes that the form of the order does not comply with those opinions of this court requiring that an award of temporary total benefits shall continue until claimant reaches MMI or is able to return to work. See e.g., Willard Kaufman Co. v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982); Lake Highland Nursing Home v. Everett, 397 So.2d 380 (Fla. 1st DCA 1981); Fowler Harvesting v. Thompson, 394 So.2d 1086 (Fla. 1st DCA 1981).

Accordingly, the decretal portion of the order awarding temporary total benefits is stricken and amended as follows: The employer/carrier shall pay to the claimant temporary total benefits until such time that claimant reaches MMI or is able to return to work, whichever first occurs.

The order is otherwise affirmed.

MeCORD and JOANOS, JJ., concur.