author: SHIVERS, Judge.

text:
    Kenneth A. KNOBLE and Sandra Sue Knoble, Appellants, v. STATE of Florida, Appellee.
    No. VV-92.
    District Court of Appeal of Florida, First District.
    May 28, 1981.

      Wm. J. Sheppard and Hugh A. Carithers, Jr., of Sheppard & Carithers, P. A., Jacksonville, for appellants.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Defendants appeal from their judgments of conviction of possession of marijuana, contending the trial court erred in denying their motion to suppress evidence discovered in their van by an agricultural inspector and further erred in denying their challenge to the jury panel on the ground that the prospective jurors were not selected or drawn according to law. We reverse the trial court’s denial of defendant’s motion to suppress and therefore do not reach the issue of whether the panel of prospective jurors were properly selected or drawn according to law.

On the morning of May 29, 1979, Agricultural Inspection Officer Pease observed the defendants’ 1976 Ford van pass an agricultural inspection station on Interstate 75 without stopping. He pursued the van and subsequently pulled it over to the side of the highway. He approached the van and asked to see defendant Sandra Sue Knoble’s driver’s license, explaining that vans were required to stop at agricultural inspection stations. Following a brief conversation, Inspector Pease asked whether he could look inside the van in search of agricultural products. The defendants consented and Kenneth Knoble opened the side door of the van. Inspector Pease looked into the van, observed a built-in bed in the rear of the van, and ordered the defendants to accompany him back to the inspection station.

Upon returning to the station, he informed the defendants of the statute requiring vans to stop at inspection stations and read them Miranda warnings. Inspector Pease testified the defendants then consented to a further inspection of the van. Defendant Sandra Sue Knoble denied that the defendants consented to an inspection. After opening the rear door, Inspector Pease testified he first smelled the odor of marijuana coming from underneath the built-in bed and observed packages which he believed to contain marijuana. He then notified the Hamilton County Sheriff’s Department and defendants were subsequently arrested and charged with possession of marijuana.

Defendants filed a second amended motion to suppress the marijuana, contending, among other things, that the inspector did not have statutory authority to initially stop the van but, if he did, he had no authority and no probable cause to detain defendants and require them to submit to a more extensive inspection back at the station. Following a hearing on the motion to suppress at which the defendants introduced evidence that the van had been customized and redesigned as a recreational vehicle, the trial court denied the motion to suppress. Defendants were subsequently tried and convicted of unlawful possession of more than five grams but less than 100 pounds of marijuana.

We conclude the trial court erred in denying defendants’ motion to suppress because Inspector Pease had no authority or probable cause to detain the defendants and require them to submit to a more extensive inspection of the van following his initial roadside inspection. The record shows the defendants were driving a recreational vehicle and the Legislature has determined that agricultural inspectors have no right of access to recreational vehicles as opposed to cargo vehicles. Section 570.15, Florida Statutes (1978). Section 570.15(l)(a) provides agricultural inspectors with full access to “trucks” and “motor vehicles, except private passenger automobiles . .. and motor homes as defined in Section 320.01(l)(b) .... ” Section 320.01(l)(b)4, Florida Statutes (1978), defines “motor homes” as a vehicular unit of specified proportion, “primarily designed to provide temporary living quarters for recreational, camping, or travel use.” Section 570.15(2), Florida Statutes (1978), makes it unlawful for any “truck” to pass an agricultural inspection station without first stopping for an inspection.

However, only certain vans fall under the definition of “truck” as used in Section 570.15. Gluesenkamp v. State, 391 So.2d 192 (Fla.1981); Eden v. State, 370 So.2d 826 (Fla.1st DCA 1979). “It is the design, maintenance, and actual use of a van type vehicle that determine whether it is a truck. Vans designed to carry cargo are trucks and are required to stop at agricultural inspection stations. Vans designed as passenger vehicles are not.” Gluesenkamp, supra, at 198. The State may require vehicles to stop at inspection stations although the inspectors may have no right of access to them under the statute in order to allow the inspectors to determine whether they have the right of access. Stephenson v. Department of Agriculture, 342 So.2d 60 (Fla.1976); Gluesenkamp, supra. Stephenson held that trucks are required to stop at inspection stations in order for the agricultural inspectors to determine whether they have a right of access under Section 570.15 and, if so, whether to exercise it. Eden, supra, and Gluesenkamp, supra, in turn, held that the inspectors do have the right of access to vans designed or maintained to carry cargo.

In the present case, although Stephenson, supra, authorized the initial stop of defendants’ van when they passed the station in order to allow the inspector to determine whether it was a cargo van or a passenger van, the inspector had no authority to seize, detain and inspect the vehicle after observing the van was primarily designed as a recreational passenger vehicle. The evidence presented at the suppression hearing below showed that defendants’ van was maintained as a recreational passenger van rather than a cargo designed van and was not required to stop at the inspection station. An expert witness for the defense testified that the van had undergone a major interior customization, including wood or masonite paneling, carpeting, built-in bed, a built-in stereo system, and facilities for camping. The van contained customized “market chairs” which had been installed in place of the standard manufacturer’s chairs. This testimony was corroborated by photographs admitted into evidence at the suppression hearing and at trial. The expert witness opined that the former cargo van had been redesigned for recreational use. He further noted that the spare tire was mounted on the back exterior of the van which was indicative of cargo vans which had been redesigned for recreational use since cargo vans usually carry the spare tire inside the vehicle. One of the defendants testified that they had been using the van as living and camping quarters for several months prior to their arrest and this testimony was supported by the inventory of items found in the van including camping gear, sleeping bags, blankets, pillows, an axe, toiletry items, an ice chest, towels, and luggage.

After initially stopping the defendants’ van on the roadside, the inspector testified the defendants voluntarily allowed him to look into the van. He testified that he probably would not have required the defendants to return to the station for further inspection had he not seen the storage compartment beneath the bed in the rear of the van. We do not believe the presence of the storage compartment was sufficient in and of itself to bring the van within the parameters of Section 570.15 in order to give the inspector statutory access to inspect the van. Many motor homes, vans, and other recreational motor vehicles exempt from the inspector’s statutory right of access contain some storage compartments. Additionally, following the initial roadside inspection, the inspector did not have probable cause to believe the defendants were in possession of either marijuana or agricultural products. He testified that he had not seen or smelled the marijuana until after he conducted the second inspection back at the station.

In sum, once the inspector was able to determine that the van was a recreational passenger vehicle rather than a cargo van, he was without authority to return the van to the station for a more extensive inspection under Section 570.15. He testified that he lacked probable cause to believe that defendants were violating the law until after he conducted the second inspection. Therefore, the evidence which was seized was the result of an illegal search and seizure and should have been suppressed by the trial court. Accordingly, defendants’ judgments of conviction are reversed and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

REVERSED and REMANDED.

WENTWORTH, J., and LILES, WOOD-IE A. (Ret.), Associate Judge, concur.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    WEIGH LESS FOR LIFE, INC., a Georgia Corporation, and Thomas Owen, Appellants, v. BARNETT BANK OF ORANGE PARK, Appellee.
    No. VV-161.
    District Court of Appeal of Florida, First District.
    May 28, 1981.

      Hugh M. Davenport, of Smith, Davenport, Bloom & Harden, Tallahassee, for appellants.
    Edward G. Whitaker, Jr. and Calvin E. Hayden, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

The trial judge granted a final summary judgment adverse to appellants based in part upon a determination that an order dissolving a prejudgment writ of replevin obtained by Weigh Less for Life Inc. (Weigh Less) against appellee Barnett, in a separate (case no. 78-777) law suit involving a Lincoln automobile, was a conclusive determination that Weigh Less had no ownership rights in the automobile. Appellants assert on this appeal that an order granting a motion to dissolve a prejudgment writ of replevin under Section 78.068, Florida Statutes (1979) is not a final determination of ownership, but merely determines which party is entitled to possession of the disputed property pending final adjudication of the replevin action. We agree and reverse.

Section 78.068 provides for issuance of a prejudgment writ of replevin “forthwith” upon certain conditions, spelled out in the statute, which must be met by the “petitioner” (plaintiff). Under subparagraph (6), the defendant, by “contradictory motion” filed within ten days after service of the writ, may obtain dissolution of a prejudgment writ of replevin “unless the petitioner proves the grounds upon which the writ was issued.” This subsection further provides that the court shall set down such motion for “an immediate hearing.” In case no. 78-777 such a motion was filed, and an order dissolving the prejudgment writ of replevin was issued by the trial judge. An interlocutory appeal from that order by Weigh Less resulted in a per curiam affirm-anee, without opinion, by this court. Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 374 So.2d 103 (Fla. 1st DCA 1979). In the meantime, Weigh Less and appellee Thomas Owen filed the present action for trespass and other damages, and the replevin action was subsequently voluntarily dismissed by Weigh Less, without prejudice, pursuant to Rule 1.420(a), Florida Rules of Civil Procedure.

The language of Section 78.068 was added in 1976 apparently to provide an additional creditor’s remedy to the general revision of the law of replevin enacted in 1973 (Chapter 73-20, Laws of Florida, 1973). Unfortunately, little consideration seems to have been given by the drafters to the problem of integrating the new provisions with the otherwise readily understandable existing replevin statutes. Subsection (6) allows the plaintiff to defeat a motion to dissolve a prejudgment writ of replevin if he “proves the grounds upon which the writ was issued .. .,” at “an immediate hearing,” which must be set by the court. Taken literally, “proves the grounds” implies that the plaintiff must prove his case, once and for all. Based upon that interpretation, plaintiff would either win or lose based upon the outcome of this motion hearing. We are required, however, to read almost two additional pages of the statutes in order to discover whether, or in what manner, these provisions mesh together. In so doing we note the provisions of Sections 78.065 and 78.067 which clearly spell out provisions for determining which party is “entitled to the possession of the claimed property pending final adjudication of the claims of the parties.” Section 78.065(2)(e), and 78.067(2). No similar language appears in Section 78.068. On the other hand, the sections of the statute which follow make it clear that further proceedings are contemplated. This is evident from the provisions of Section 78.20, which provides that when property has been redelivered to the defendant “upon the dissolution of a prejudgment writ” (or upon his forthcoming bond) and “defendant prevails,” the defendant is entitled to judgment against the plaintiff for damages for the taking, attorney’s fees, and costs. Section 78.21 makes similar provision for judgment in favor of the defendant under circumstances where the goods have not been retained by or redelivered to him, if “he prevails .... ” Finally, Section 78.18 provides for recovery by the plaintiff of his damages caused by the taking and detention, together with costs, in instances where the plaintiff has recovered the property under the writ.

These statutory provisions, read in pari materia, persuade us that the dissolution of a prejudgment writ of replevin, on motion, under Section 78.068(6), has no effect other than to determine the right to possession of the property pending final adjudication of the claims of the parties. This is obvious from a reading of the statutory provisions referred to above, as well as from the fact that Section 78.068 does not set forth a remedy complete in and of itself, since other provisions must be referred to in order to discover essential procedural and substantive aspects of a replevin action.

We therefore cannot agree with the finding contained in the trial court’s order for summary judgment that “Plaintiff’s claim of ownership right in the Lincoln automobile in this law suit has been conclusively determined by the replevin action of Case No. 78-777-CA .... ” The order dissolving the prejudgment writ of replevin recites that the plaintiff (Weigh Less) “has failed to prove the grounds on which the writ was issued.” This ruling, under our view of the statute, determines the right of possession during pendency of the litigation, nothing more. The motion procedure provided by the statute cannot be considered as depriving the plaintiff of the right to a trial under the rules of procedure applicable to other law actions generally, which includes the right to a jury trial. Wooton v. Carrollton Acceptance Co., 103 Fla. 237, 137 So. 390 (1931); Southside Atlantic Bank v. Lewis, 174 So.2d 470 (Fla. 1st DCA 1965). See Rule 1.010, Florida Rules of Civil Procedure.

Since there was no final adjudication of the rights of the parties with respect to the disputed automobile in the prior re-plevin action, the doctrine of collateral es-toppel or estoppel by judgment does not apply. The essential elements of this doctrine are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction. Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977). Under the principle of estoppel by judgment, parties are estopped from litigating in a second suit points and questions which were common to both the first and second causes of action and which actually were adjudicated in the prior litigation. Monyek v. Klein, 329 So.2d 25 (Fla. 3rd DCA 1976). The order granting the motion to dissolve the prejudgment writ did not finally dispose of the case, and therefore cannot provide the foundation for a claim of estoppel by judgment. Furthermore, a final judgment is necessary to invoke the doctrine of res judicata. Donnell v. Industrial Fire and Casualty Co., 378 So.2d 1344 (Fla. 3rd DCA 1980). Cf. Avant v. Hammond Jones, Inc., 79 So.2d 423 (Fla.1955).

Appellee’s position with respect to the present litigation (claims for taking and loss of use of the automobile and other personal property, trespass and damage to property, and slander), and the trial court’s summary judgment entered upon appellee’s motion, proceed upon the assumption that the re-plevin action was “concluded” by the order dissolving the prejudgment writ of replevin. Since this assumption is erroneous, we must reverse.

In view of our reversal and remand, we call attention to the necessity for resolution of factual issues at a trial, either before the judge or a jury unless a jury trial is waived by the parties.

REVERSED AND REMANDED.

ERVIN and SHIVERS, JJ., concur.

      . We note, however, that the defendant is not required to present any proof at the motion hearing under Section 78.068. This indicates that the ruling at the motion hearing adjudicates the right to possession, rather than title or ownership.

      . This language was added in the same enactment in which Section 78.068 was passed, Chapter 76-19, Laws of Florida, 1976.

      . Numerous factual arguments are made by both parties in their presentation to this court and we are asked to rule on various matters of law applicable to those facts. This is not the appropriate forum for determination or resolution of factual matters and disputes.


text:
    Larry Silves DUNSFORD and Perry Hampton, Appellants, v. STATE of Florida, Appellee.
    Nos. W-281, W-282.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Rehearing Denied June 24, 1981.
    Michael Allen, Public Defender, and Randolph P. Murrell, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Hampton appeals his conviction of burglary, and Dunsford appeals his conviction of burglary and grand theft. Hampton relies for reversal upon his contention that the trial judge erroneously instructed the jury on the presumption arising from the unexplained possession of recently stolen goods (Florida Standard Jury Instructions, Criminal Cases), without adequate factual basis for the giving of that instruction. Dunsford contends that the “unexplained possession” instruction amounted to an unfair comment on his exercise of his “Miranda” rights, and that since he explained his possession of the stolen property at the trial, the instruction gave the improper implication that he had not explained it. Both appellants present a third issue, that the court erred in failing to grant a mistrial on appellants’ motion after an investigating officer testified that his investigation confirmed that two juveniles (who were not on trial) were not involved in the burglary and theft. We affirm the convictions as to each appellant.

Hampton’s contention that the evidence relating to the stolen character of tires and a Volkswagen engine recovered from Hampton’s home did not justify the givrng of the unexplained possession instruction merits consideration. Although Investigator Franklin claimed that the two tires seized from Hampton’s residence had been identified as belonging to the victim, employees who identified other goods stolen during the burglary testified that they had not identified the tires as being stolen. Further, Hampton’s wife testified that her husband owned the tires. The Assistant State Attorney who argued the case conceded the insufficiency of the evidence relating to the tires when he stated to the jury that he could not say whether the tires were stolen, that he did not know “whether they were or not,” and that it “very well could be that the tires were not stolen.” Additionally, Hampton points out that no one ever identified the Volkswagen engine seized at Hampton’s home as being the one stolen from the victim. Thus the identity of these allegedly stolen items was not established beyond a reasonable doubt. Florida Standard Jury Instructions in Criminal Cases 2.14; Kennedy v. State, 31 Fla. 428, 12 So. 858 (1893); Adams v. State, 102 So.2d 47 (Fla. 1st DCA 1958). The State, on the other hand, argues that the instruction was proper because the witness Harry Joiner, who was implicated in the offense with appellants, testified in behalf of the State that he, Dunsford and Hampton burglarized the auto parts store, unloaded a Volkswagen engine and two tires at Hampton’s residence, then proceeded to Dunsford’s home where they unloaded the remaining stolen goods.

We think it is improper for the trial court to instruct the jury that there is an inference of guilt when the identity and stolen character of the property is established solely by evidence in the form of the testimony of an accomplice in the theft or burglary. The rule itself, which recognizes an inference of fact arising from the possession of recently stolen property, is one relating to the probative value of circumstantial evidence. See State v. Young, 217 So.2d 567 (Fla.1968); Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979). The testimony of the accomplice Joiner, relating to his participation in the stealing of the property and the depositing of some tires and an engine at Hampton’s residence, was not circumstantial, but direct evidence. We can conceive of no logic or reason for the supposed existence of any presumption or inference arising from facts established by this testimony. Joiner’s testimony that the tires and the engine found at Hampton’s residence were in fact stolen carries no greater probative value than Joiner’s testimony that Hampton helped he and Dunsford steal them.

While we consider that it was improper to give the unexplained possession charge with respect to Hampton, we also conclude that the error was harmless. Since tires and a Volkswagen engine were stolen, the discovery of tires and a Volkswagen engine at Hampton’s home is a circumstance that might be considered in corroboration of Joiner’s testimony, notwithstanding the lack of other evidence specifically identifying the property as that stolen from the victim. In view of the nature of the evidence against appellant Hampton we are of the view that the jury could not have been mislead by the unexplained possession charge, and we accordingly hold that the error was harmless.

Appellant Dunsford’s arguments with respect to the giving of the unexplained possession charge have been recently disposed of in Smith v. State, 394 So.2d 407 (Fla.1980), in which the court reaffirmed its holding in State v. Young, 217 So.2d 567 (Fla.1968), cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969). Here, as in Smith v. State, supra, Dunsford gave no explanation for his possession of the recently stolen property at the time of his arrest. The cited cases hold that the accused’s Fifth Amendment right to remain silent is not violated by the instruction. See also Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). The facts in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), relied upon by appellant, make that case inapplicable.

Appellant Dunsford’s contention that the possession instruction was erroneous because it improperly reflected upon the credibility of his explanation of his possession given at the trial has been recently disposed of by this court’s ruling in Lynn v. State, 395 So.2d 621 (Fla. 1st DCA 1981).

Finally, we conclude that the trial court’s curative instruction to the jury to disregard the testimony of Investigator Franklin with regard to the role of the juveniles in the offense satisfactorily alleviated any prejudice resulting from the Investigator’s improper testimony. No abuse of discretion in the failure to grant a mistrial has been shown. See Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Preston v. State, 342 So.2d 852 (Fla. 2nd DCA 1977), and Burkhead v. State, 206 So.2d 690 (Fla. 3rd DCA 1968).

AFFIRMED.

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


author:
SHAW, Judge.
      MILLS, Chief Judge,

text:
    SOUTH FLORIDA GRASSING/RISK MANAGEMENT SERVICES, INC., Appellants, v. Arcelious LeRoy BUNNS, (Dec.), and Mr. and Mrs. Johnson Evans, Appellees.
    No. XX-79.
    District Court of Appeal of Florida, First District.
    May 28, 1981.

      Robert D. McAliley of Brennan, McAliley, Hayskar & McAliley, P.A., West Palm Beach, for appellants.
    Michael H. Stauder, Pahokee, for appel-lees.
   SHAW, Judge.

This is an appeal from a workers’ compensation order awarding compensation benefits under § 440.16, Florida Statutes (1975), to Mr. and Mrs. Evans, standing in the place of the deceased employee’s parents.

The employee, LeRoy Bunns, died at the age of 17 in a work-related accident. Le-Roy had been raised by the Evanses since age 4 in a household which consisted of Mr. and Mrs. Evans, a niece, a cousin, and the child of a niece. ' None of these persons were related to the deceased, and at the time of his death the cousin had moved out of the household.

LeRoy quit school in order to get a job to help out with the family finances, and at the time of his death he had been working at South Florida Grassing for about 4 months, earning an average weekly wage of $194.42, all of which he gave to Mrs. Evans to help defray household expenses. His earnings approximated 36% of the entire household income and Mrs. Evans testified that this money was used to buy groceries and help with household expenses such as the light bill, water bill, and furniture bills. According to Mrs. Evans, the deceased quit school and started working in order to help with the expenses because she and her husband were behind in their bills. It was her testimony that because of the contributions of the deceased, “we can pay the bills and eat and be happy,” and as a result of LeR-oy’s death she was “in badder shape now because I don’t have nobody to help us but my husband.”

The deputy commissioner found that the Evanses were dependent upon LeRoy at the time of his death. In reaching his conclusion the deputy utilized the 6-point dependency test established in MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960). The deputy recognized in his order that the three “foster” daughters living in the Evans household could not be considered sisters of the deceased for the purpose of determining dependency under Chapter 440, and before reaching a conclusion that LeRoy’s contributions enabled Mr. and Mrs. Evans to maintain or upgrade their standard of living, he specifically excluded the expenses of the family unit which involved the three non-related “foster” daughters. In Urban League of Greater Miami v. Lopez, IRC Order 2-3377 (December 6, 1976), cert. denied, 366 So.2d 883 (Fla.1978), a similar household included members who were not statutory dependents of the decedent. The IRC held in Lopez that the substantiality of the decedent’s contributions should be measured only by the needs of the statutory dependents.

The employer also asks that we interpret § 440.02(14) to require that persons standing in the place of parents be dependent on the deceased for three years preceding the employee’s death. The statute does not lend itself to such an interpretation. The pertinent section provides that the term “parent” includes “any persons who for more than three years prior to the death of the deceased employee stood in the place of a parent to him, and were dependent on the injured employee.” The import of the statute is that the term “parent” shall apply to persons who have met the definition of a parent for more than three years before the death of the employee. Dependency upon the deceased is an additional prerequisite which must exist at the time of the death. We do not read into the statute the requirement that this dependency must exist for the three years preceding the accident or death. The deputy commissioner correctly concluded that the claimants fell within the definition of parents.

The commissioner’s findings are supported by competent substantial evidence and the order is affirmed.

JOANOS, J., concurs.

MILLS, C. J., dissenting with opinion.

MILLS, Chief Judge,

dissenting.

In my judgment the award of workers’ compensation dependency benefits under Section 440.16, Florida Statutes (1975), to persons who stood in the place of parents to the deceased employee should be reversed because there was no competent substantial evidence to support, the deputy commissioner’s finding that they were actually dependent at the time of the employee’s death.

The deceased employee, known as LeRoy Bunns, died at the age of 17 in a work-related accident. Katie and Johnson Evans, the claimants, were not legally related to Bunns but had raised him since he was about 4 years old.

The evidence shows that the Evanses never had any children of their own, but they raised Bunns, a niece, a cousin, and the child of a niece. All of the others lived with the Evanses at the time of Bunns’ death, except the cousin who was 18 and apparently had just moved out and gotten her own job. Bunns was not related to any of the people of the household by blood.

The evidence supports a finding that he quit school in order to get a job and help out with the family finances. He had been working at South Florida Grassing for about four months at the time of the accident. He got paid once a week and always cashed his check on the way home and gave all of the money to Mrs. Evans. Mr. Evans likewise gave his entire paycheck to her and she managed all of the household’s finances. Mr. Evans made $17,000 to $18,000 a year and Bunns made an average weekly wage of $194.42. Expressed in percentages, Bunns made approximately 56% of the amount Mr. Evans made and his contribution consisted of 86% of the household income.

The testimony reveals that Bunns’ financial contribution to the household finances did not make a significant difference in lifestyle of the household in the sense of the provision of housing, food, clothing, and other necessities. Rather, the way in which it did make a difference, based on the testimony, is that the household was able to pay off debts.

As to whether they had made any purchases they would not otherwise have made, Mrs. Evans said that he only worked for four months and asked how could they get involved in new purchases over such a short period of time. The only other specific factor testified to as to change in lifestyle was that while LeRoy was working, Mr. Evans was able to go to the dog track once or twice a week and after LeRoy died he was unable to go at all. In the order the deputy commissioner specifically found that Bunns made regular contributions to the household and that there was a reasonable expectation that these contributions would continue and there was no basis to conclude that he had any short term plans to leave. The deputy commissioner specifically stated, “although there was only marginal evidence of any change in lifestyle resulting from LeRoy Bunns’ contributions, Mrs. Evans testified that LeRoy Bunns helped to pay the bills and helped the family ‘eat and be happy.’ ”

The deputy commissioner found Mr. and Mrs. Evans to be dependent upon LeRoy Bunns at the time of his accident, referring to MacDon, 117 So.2d 487 (Fla.1960), and the six criteria for dependency therein, and Ledger v. Geiger-Jones Construction Co., 329 So.2d 3 (Fla.1976), to the effect that a contribution of Vs to Vfe of the household operating costs created dependency status.

The criteria set forth in MacDon by which claims for dependency benefits must be measured are as follows:

1. That the claimant is ... actually a dependent;
2. That the dependency existed at the time of the death of the employee;
3. That the deceased employee must have actually made substantial contributions toward the support of the claimant, an expectation of future contributions not being enough;
4. That such contributions must have been regularly made with reasonable expectation that they would continue to be made in the future;
5. That if the contributions are made by a child to a parent with whom the child is living and from whom the child is receiving board, lodging, or other accommoda,-tions of value, it must be shown that the contributions paid the parent exceed, in substantial amount, the reasonable value of the board, lodging, or other accommodations received by the child from the parent; and
6. That what is a substantial contribution sufficient to create actual dependency must in each instance be determined by the extent to which the contributions of the deceased employee enabled the dependent to maintain his or her accustomed standard of living.

In Ledger, supra, the Supreme Court reviewed a dependency determination where the decedent was survived by his disabled father, his mother, and four minor siblings. He sent $40 per week to the family. Using a “family pot” analysis, the Judge considered all the moneys contributed by the various family members, analyzed the group’s expenses and concluded that the decedent’s contribution which constituted xk to Ve of the operating costs of the household, was essential for the family’s subsistence and awarded dependency benefits. The Court upheld the Judge’s ruling.

If the deceased employee in this case had been related to the other minor members of the household, I would agree that under Ledger the evidence would support the finding of the deputy commissioner. Since he was not, however, the needs and expenses of the other minor members should be excluded from consideration because those persons are not among those permitted by Section 440.16 to be considered as his dependents.

A case more nearly on point with the fact situation in the instant case is Urban League of Greater Miami v. Lopez, IRC Order 2-3377 (December 6, 1976), cert. denied, 366 So.2d 883 (Fla.1978). There, the Industrial Relations Commission pointed out the fallacy of using a “family pot” approach where some of the members of the household are not statutory dependents of the decedent. The Lopez household consisted of the mother and father, five minor siblings, three adult siblings, and one mother-in-law. Although the Judge in Lopez erred in a way not applicable here by considering only the parents’ and the decedent’s earnings in determining the contribution to the “family pot”, but considering the flexible household expenses of all the members of the household in determining the substantiality of the decedent’s contributions, the rule announced concerning the weighing of the role of nondependents is applicable. The Commission stated:

The Judge erred in including certain expenses of the nonstatutory dependents in the household in arriving at a finding decedent’s contribution was essential for the family’s subsistence. The substan-tiality of decedent’s contribution should have been measured only by the needs of the statutory dependents, the parents and minor siblings, to determine if decedent’s contribution was necessary to enable them to maintain their accustomed standard of living. The evidence establishes the parents income was sufficient for the parents and their minor children. Decedent’s contribution became substantial only when the needs of individuals not included in the statutory definition of dependents were added to the needs of the parents and the minor siblings.

In the instant case, the evidence established that Mr. Evans earned $17,000 to $18,000 per year and that Bunns’ contribution helped the family to eat and be happy. There is no evidence that Bunns’ contributions were necessary to help the Evanses themselves maintain their accustomed standard of living, but only evidence that they were necessary to help the household do so.

Although the deputy asserted in his order that be believed that Bunns’ contributions “would also have been important to maintain the household standard of living” had the family unit consisted only of Mr. and Mrs. Evans and Bunns, this assertion falls short of a finding that his contributions “were necessary”, the term used earlier in the same paragraph regarding the importance of his contributions to “all the members of that household unit.”

Accordingly, I would reverse the award of dependency benefits to Mr. and Mrs. Evans.


author: PER CURIAM.

text:
    Roosevelt Stride JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. XX-97.
    District Court of Appeal of Florida, First District.
    May 28, 1981.
    Louis 0. Frost, Jr., Public Defender, and Robert E. Tanner, Jr., Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On February 22, 1980, Jacobs pled guilty to a charge of armed robbery. The trial court then sentenced him to 99 years imprisonment reserving jurisdiction to review any Parole and Probation Commission release order pursuant to Section 947.16(3), Florida Statutes (Supp.1978). Jacobs then moved to correct the sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Jacobs challenged the constitutionality of Section 947.16(3). The trial court denied the motion and Jacobs filed this appeal. The issues Jacobs raises on appeal have been recently addressed and resolved by this court in Arnett v. State, 397 So.2d 330 (Fla. 1st DCA). Since we find no basis upon which to distinguish this cause from Arnett, the order denying Jacobs’ motion is

AFFIRMED.

MILLS, Chief Judge, and LARRY G. SMITH and BOOTH, JJ., concur.


author: JOANOS, Judge.

text:
    SAM L. RUDD LEASING U. S. A., Aetna Life & Casualty Co., Appellants, v. Otis G. BECK, as personal representative of the estate of Bernice Beck Pickens, Appellee.
    No. XX-147.
    District Court of Appeal of Florida, First District.
    May 28, 1981.

      Frank J. Santry of Field, Granger, San-try & Mitchell, Tallahassee, for appellants.
    Brian S. Duffy and Mary Lee Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   JOANOS, Judge.

The employer/carrier in this workers’ compensation appeal challenges an order of the deputy commissioner finding that the Industrial Relations Commission (“IRC”) opinion which reversed the deputy’s initial order was dispositive of the issue of com-pensability and awarding compensation and medical benefits to the claimant. We find that the deputy was correct in her construction of the IRC opinion but reverse the portion of her order awarding medical benefits not related to the claimant’s compensa-ble injuries.

This workers’ compensation appeal has had a full procedural history despite its essentially undisputed facts. At the initial hearing, the testimony disclosed that on the morning of December 22, 1977, while driving to work in her car, the claimant made a one block detour in order to deposit her employer’s receipts from the previous day. After making the deposit, she proceeded to work along her normal route when, on the road adjacent to the office where she worked, she unexpectedly suffered a heart attack due to a pre-existing condition. The claimant lost consciousness; her car swerved off the road and hit a building in the apartment complex which housed the office. As a result of the collision, she broke her knee, several ribs, two teeth, and a dental plate. After considering the evidence, the deputy commissioner entered an order denying compensability of the claim on the ground that claimant’s heart attack was not a result of unusual exertion on the job as required by Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961). The deputy stated that her decision on this point rendered moot the other defenses raised by the employer/carrier, which included the arguments that the accident did not arise out of and in the course of employment and that the “going and coming” rule applied.

The claimant appealed to the IRC raising six points. Among the issues raised, claimant argued that her collision-related injuries were compensable since they were directly caused by a combination of an idiopathic condition (pre-existing heart disease) and the work place (use of an automobile). The IRC apparently agreed with this argument because it reversed the deputy’s order stating that the deputy erred in applying the Victor Wine rule since the “vital point in this case is the fact that [claimant] was in an automobile as part of her employment and this fact was a contributing cause to her subsequent injuries.” Pickens v. Sam L. Rudd Leasing, Inc., Fla., 381 So.2d 769 (1979). After this ruling, the employer-carrier sought certiorari review before the Florida Supreme Court, which denied. Sam L. Rudd Leasing, Inc. v. Pickens, 381 So.2d 769 (Fla.1979).

On remand from the IRC, the deputy determined that the IRC order constituted a finding as a matter of law that the claimant’s orthopedic and dental injuries arose out of and in the course of employment. For good measure, the deputy also ruled that the “going and coming” defense was inapplicable. In addition, the deputy awarded temporary and permanent disability as well as medical benefits for claimant’s non-cardiac injuries. In its challenge to the deputy’s order, the employer/carrier raised three issues on appeal: (1) whether the injuries resulted from an accident arising out of employment; (2) whether the injuries resulted from an accident in the course of employment (i. e., whether the “going and coming” rule applies); and (3) whether the medical benefits awarded to claimant were related to a compensable injury. We hold that the first two issues have already been resolved by the IRC and are, therefore, subject to the law of the case. Regarding the third issue, however, the record does disclose that a part of medical benefits awarded were due to treatment of her preexisting cardiac disease rather than her collision-related injuries.

With regard to the effect of the IRC order, the employer/carrier argues that because the deputy in her first order relied solely on Victor Wine and declined to rule on whether the accident arose out of and in the course of employment, any determination by the IRC other than their ruling that Victor Wine was inapplicable is merely obi-ter dictum. We cannot agree. According to Huddock v. Grant Motor Co., 228 So.2d 898 (Fla.1969), where the material facts essential to the determination of whether an accident arose out of and in the course of employment are not in dispute, the question of compensability is one of law. The claimant’s application for review and both parties’ arguments before the IRC demonstrate that the parties argued and the IRC disposed of the legal issues revolving around a set of essentially undisputed facts. Despite the deputy’s failure to reach those legal issues, the IRC was asked to reach its own conclusion on its review of the material facts.

IRC orders are subject to the same rules of law of the case as are court orders. Hodges v. State Road Department, 171 So.2d 523 (Fla.1965). In this case, the IRC’s ruling that the claimant was in her automobile as a part of her employment and that use of the automobile contributed to her injuries effectively disposed of the employer/carrier’s position that claimant’s accident did not arise out of or in the course of employment. The IRC’s disposition of that argument and the subsequent denial of cer-tiorari by the Florida Supreme Court are the law of the case; as such, this Court will not reconsider what amounts to a second appeal of issues already decided by the IRC. See Greene v. Massey, 384 So.2d 24 (Fla.1980); Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965).

The third issue raised by the employer/carrier is appropriate for determination by this Court since medical benefits were never discussed in any prior order. In the order which is the subject of this appeal, the deputy’s finding of compensability was limited to the collision-related injuries, and this finding has not been challenged by claimant. Disability and medical treatment that resulted solely from the claimant’s heart condition, therefore, were not award-able. Admittedly, apportionment of medical costs between cardiac and non-cardiac care was a difficult task in this case due to the simultaneous presence of both compen-sable and non-compensable injuries as well as the similarity in medications used to treat each. There is competent substantial evidence that the medical benefits awarded for claimant’s first hospitalization and domestic help were necessitated by her orthopedic and dental injuries. When claimant was hospitalized a second time, however, between February 27, 1978 and March 3, 1978, her physician testified that although claimant was treated for phlebitis, which was related to the collision, she was also treated for her heart failure. According to the treating physician’s testimony (and there was no other medical testimony on this point), although claimant was admitted to the hospital for treatment of phlebitis, only the heart condition required hospitalization. Thus, the deputy erred in awarding the costs of the entire hospitalization and in not separating out the treatments for heart failure from the treatments for phlebitis.

Accordingly, the order of the deputy commissioner is affirmed in part, reversed in part, and remanded to the deputy commissioner with instructions to enter an order consistent with this opinion awarding medical benefits for only collision-related injuries.

MILLS, C. J., and SHAW, J., concur.


text:
    Lee M. DERRICKSON, Appellant, v. STATE of Florida, Appellee.
    No. TT-444.

    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Michael J. Minerva, Public Defender; and David J. Busch and Louis G. Carres, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and David Gaul-din, Asst. Atty. Gen., for appellee.
   PER CURIAM.

On appeal is the denial of a motion to suppress evidence obtained from a small airplane. Appellant plead nolo contendere to the charge of importation of cannabis in excess of 100 pounds, reserving the right to appeal the denial of the motion to suppress. We affirm.

On December 5, 1977, weather conditions near the Gainesville Municipal Airport were such that anyone wishing to land an airplane there was required to contact the control tower and obtain landing instructions before coming within five miles of the airport. On this evening, however, an airplane landed without communicating with the control tower and obtaining clearance or approval from the air controller. The air controller attempted unsuccessfully to make contact with the pilot of the airplane after it had landed and taxied to the north ramp of the airport, known as the Sopwith Camel. The air controller then notified the Gainesville Police Department of the incident.

Three police officers arrived and examined the exterior of the airplane with a flashlight. Each officer claimed to have seen, through the window of the airplane, a white plastic garbage-type bag with a small tear in it, through which a green or brown leafy substance was visible. The officers testified they believed the material to be marijuana. The three officers secured the area and called in two other officers, one of whom was a member of the Gainesville Police Department’s narcotics and organized crime unit. Upon the arrival of the other two officers, a warrantless search of the unoccupied airplane was conducted and over 100 pounds of marijuana were seized. At a later date, appellant, the pilot of the airplane, was arrested and charged.

Appellant argues that the search was unreasonable because no exigent circumstances existed and the plain view exception to the warrant requirement was not applicable, since “plain view alone is never enough to justify the warrantless seizure of evidence.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We do not agree that the search was conducted based on plain view alone.

In Coolidge, the Supreme Court was concerned with distinguishing cases in which “plain view” has some legal significance from other cases, since “in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure” (emphasis in original). 403 U.S. at 465, 91 S.Ct. at 2037. Plain view alone cannot justify a warrant-less seizure of evidence; there must be some prior justification for the officers’ presence at the location where the observation takes place. This prior justification is not limited to the existence of exigent circumstances:

What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. (emphasis added)

403 U.S. at 466, 91 S.Ct. at 2038.

The officers who viewed what they believed to be marijuana through the airplane window were legitimately present at the scene; they had been called to investigate the surreptitious landing of the airplane. The initial investigation and examination of the exterior of the airplane, which had been landed without clearance and left at the public airport, did not constitute a search directed against appellant; “a search is generally accepted to be an inspection or examination of places closed from public or general view.... ” State v. Ashby, 245 So.2d 225 (Fla.1971). In this case, the prior justification for the officers’ presence also indicates that the requirement of inadvertence was satisfied; the officers who responded to the call from the airport to investigate the surreptitious landing did not anticipate the discovery of this evidence, so that a warrant could have been procured beforehand; nor did they know in advance the location of evidence and intend to seize it. 403 U.S. at 470, 91 S.Ct. at 2040.

The basic requirements of the plain view exception to the warrant requirement have been clearly set forth in Pomerantz v. State, 372 So.2d 104, 110 (Fla. 3rd DCA 1979) cert. denied 386 So.2d 642 (Fla.1980):

In a long line of cases, the Florida and federal courts have held that it is not a search for the police to discover evidence in plain sight. The warrantless seizure of such evidence is constitutionally permissible providing three requirements are met: (1) the police must observe the evidence in plain sight without the benefit of a search [i. e., without invading one’s reasonable expectation or privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation, and (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime.... Such plain sight seizures have been treated either as an exception to the search warrant requirement rule, Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022 [2037-42], 29 L.Ed.2d 564 (1971), or as being entirely beyond the scope of Fourth Amendment protection. Hornblower v. State, 351 So.2d 716, 718 (Fla.1977). In any event, a search warrant is not required in order for the police to conduct such a constitutional seizure.

We have seen that the observation took place without the benefit of a search and that the officers had a legal right to be where they were when the observation was made. Given the stated belief of each of the officers that the substance observed was marijuana, following the surreptitious landing of the plane, the third criterion, probable cause to believe the evidence they were confronted with was contraband, was also satisfied.

Additional support for the conclusion that the seizure of evidence was reasonable is found in Albo v. State, 379 So.2d 648 (Fla.1980) citing Harris v. United States, 390 U.S. 234, 237, 88 S.Ct. 992, 994, 19 L.Ed.2d 1067 (1968): “Seizable items which inadvertently come into view of a law enforcement officer who has a right to be where he is may be used in the prosecution of the crime to which they are related.” The Albo court continued:

[Observation of an object by a police officer in plain view is not a search when the officer has a legal right to be in the position to have that view. Such object may be seized by the officer and introduced into evidence. . . . When contraband is the object spotted in plain view, it may be immediately seized because of its nature. . .. (citations omitted)

The denial of the motion to suppress evidence is AFFIRMED.

McCORD and LARRY G. SMITH, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.

      . It might be argued that this statement does not necessarily solve the problem of whether evidence is “seizable” when a closed vehicle must be opened in order to effect the seizure. In State v. Ashby, 245 So.2d 225 (Fla.1971), however, police officers made a warrantless seizure from a garage, of stolen items which had been observed in plain view through an existing crack in the garage door. The seizure was found to be reasonable. Obviously, once the officers made the observation, the garage door had to be opened in order to seize the items.
      In addition, an airplane is potentially highly mobile, making this situation somewhat analogous to cases in which warrantless seizures have been justified based on the automobile exception to the warrant requirement. If the officers were justified in immobilizing the airplane, and denying its use to anyone until a warrant was secured, there is little difference, in terms of practical consequences, between that immobilization and the search which was conducted after the airplane had been secured. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The Chambers Court said:
      Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which is the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
      The search in Chambers did not take place immediately after the automobile was immobilized; it occurred after the auto had been secured at the police station. See Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).


author: ROBERT P. SMITH, Jr., Judge.

text:
    Neil JENKINS, Appellant, v. STATE BOARD OF EDUCATION, Appellee.
    No. UU-191.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Leslie King O’Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellant.
    Gene T. Sellers, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Jenkins, holder of a Florida teaching certificate in the areas of music, education, and junior college, appeals from an order of the Governor and Cabinet, sitting as the State Board of Education, suspending his certificate for two years. The stated basis for the suspension is that Jenkins violated Fla.Admin.Code R. 6B-1.02(2)(e), a rule of the State Board of Education, in that he “did not ‘make reasonable effort to protect [a certain student] from conditions harmful to learning or to health and safety.’ ” We reverse the Board’s order.

The Board entered its order to this effect on findings of fact adopted from the recommended order of a DOAH hearing officer, who heard the testimony and recommended dismissal of this petition by the Professional Practices Council for the revocation or sus-. pension of Jenkins’s license. Sections 231.-09, .28, Fla.Stat.(1979). At the time of the incident complained of, Jenkins was employed by the Osceola County School Board as a high school music teacher. The hearing officer’s findings of fact that were the stated basis for the State Board’s order were that Jenkins and a 16-year-old female student were driving back at night to St. Cloud from Cocoa, where they and other students had attended a church drama program;

They stopped at Burger King to get some food, and then began to drive back to St. Cloud; the student later complained of stomach cramps and got into the back seat of Respondent’s car; some time later, the student asked the Respondent to stop the car because she was feeling worse; Respondent pulled off the road into a dirt side road and backed his car into a cattlegap entrance way with his car facing toward the side road ....

When police officers approached to investigate the parked car, Jenkins was in the back seat of the car with the student. There was evidence before the hearing officer, not alluded to either in the hearing officer’s findings or in the State Board’s order, that Jenkins was clad only in trousers and socks when the police approached, though the temperature on that March night was in the “high 30’s to low 40’s.”

Little imagination is required to raise suspicions that this teacher was engaged in sexual misconduct toward and with his student. That in effect was the formal charge against Jenkins — that he “was guilty of improper conduct toward a female student,” otherwise described as “conduct which is improper and a poor example for students and personal conduct which seriously reduces his effectiveness as an employee of the school board.” Section 231.28 provides that the Department may suspend or revoke a teaching certificate if the teacher is

(1) ... found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board ....

With an exaggerated sense of delicacy, the formal charge against Jenkins alluded only to “improper conduct toward a female student” and left the rest to imagination, but the Professional Practices Council made clear before the hearing officer, by argument and by its proposed recommended order, that the “improper conduct” was of a sexual nature. The Council’s presentation to the Governor and Cabinet was freighted with the same implications. In the briefs and oral argument before us, counsel for the State Board made the same suggestion.

The trouble with this view of the record is that the DOAH hearing officer explicitly rejected it as a matter of fact, and the Governor and Cabinet expressly adopted the hearing officer’s findings of fact. The recommended order stated at length:

Several students testified that Respondent and the subject student were often together, but the overwhelming weight of the evidence is that relationship was not improper or any different from Respondent’s relationship with other students.
James Heberlin and Bruce DeBoard, both Osceola School Board Members, testified that they would vote to rehire Respondent as an employee of the School Board. Mr. DeBoard also testified that he received several letters from citizens supportive of Respondent and had received no letters opposing him.
Mrs. Ramona Norman, mother of the female student involved in the subject incident, testified that she trusted Respondent as a teacher with her daughter and did not believe that any improper conduct occurred during the subject incident or at any other time. Mrs. Norman also testified that her daughter had been treated medically before and after the March 11, 1979, incident for stomach and adolescent emotional problems.
Reverend Myra James, former minister at Respondent’s church, testified that Respondent was very active in church activities, particularly with youth groups. She added that he was very conscientious, dedicated and interacted extremely well with youth. Based on her familiarity with Respondent, Reverend James could not perceive the Respondent engaging in any untoward conduct with a student as alleged.
The student involved in the subject incident testified respecting the alleged incident. She confirmed Respondent’s testimony that Respondent pulled over to a side road in an effort to comfort her and that nothing improper occurred then, or ever, between Respondent and herself.
There was no evidence offered to support the allegation that the Respondent’s effectiveness as a teacher was reduced because of the alleged incident. See Boyette v. Professional Practices Council, 346 So.2d 598, 600 (Fla.1st DCA 1977). To the contrary, two School Board Members as well as other students testified that the Respondent continued to enjoy a good reputation in the community as a teacher and that the subject incident has had no adverse effects on his ability to function as a teacher.

By adopting the hearing officer’s recommended finding that Jenkins’s relationship with the student “was not improper or any different from Respondent’s relationship with other students,” and that “nothing improper occurred then, or ever,” the State Board effectively rejected and dismissed as unfounded all implications and innuendos of sexual misconduct. The State Board had hardly any choice in the matter: the only satisfactory ground for rejecting the hearing officer’s findings of fact on an issue such as this would have been that the findings “were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Section 120.57(1)(b)9; McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla.1st DCA 1977).

By adopting the hearing officer’s recommended finding that Jenkins’s effectiveness as a teacher has in no way been reduced, the State Board rendered impossible any finding that Jenkins, as charged, was guilty of “personal conduct which seriously reduces his effectiveness as an employee of the school board.” Section 231.28(1).

What, then, is Jenkins now found guilty of, and for what cause shall his teaching certificate be suspended for two years?

The State Board’s conclusion, substituted for the charge that Jenkins “was guilty of improper conduct toward a female student” that “seriously reduces his effectiveness” as a teacher, is that Jenkins “did not ‘make reasonable effort to protect the student from conditions harmful to learning or to health and safety’ as required by [Rule] 6B-1.02(2)(c),” which provides:

(2) In fulfilling his obligations to the student, the educator ... (c) shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.

The State Board’s order does not tell us its reasons for considering that the student was threatened with “conditions harmful to learning or to health and safety” and that Jenkins failed to make reasonable efforts to protect the student from those conditions. Since the sexual overtones have been eliminated from the case, we can only speculate that the Board’s finding of “conditions harmful to ... health and safety” referred to the girl’s stomach cramp, and that the Board faulted Jenkins, to the extent of a two-year suspension, for stopping “in an effort to comfort” the girl rather than driving on for medical attention. This speculation on our part is of course no proper substitute for an agency’s elucidation of nonrule policy deduced from a statute or rule. General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1210 (Fla.1st DCA 1977).

But that deficiency is inconsequential in this case.

Even if we were inclined to defer to the State Board’s reading of Rule 6B-1.02(2)(c) into the circumstances of this case — and that is a most attenuated and vulnerable reading of the rule, we think — a reversal of this suspension order would nevertheless be required, for the reason that it is not a statutory ground for suspension that the teacher simply “did not” — that being the State Board’s only finding — supply the degree of student protection contemplated by the rule, or by the Board. More than simple failure to comply must be shown; more than negligence must be shown. What must be shown, if license suspension or revocation is to be the penalty, is that the teacher refused to comply with a rule. Section 231.28 provides:

The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, . . . provided: [¶] (1) It can be shown that such person .. . has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed, (emphasis added)

There is no finding in the State Board’s order that Jenkins “refused to comply” with Rule 6B-1.02(2)(c) as interpreted by the State Board. Nor is there any evidence in the record that Jenkins “refused to comply,” which implies knowledge of an explicit requirement and a conscious decision not to comply. Nothing approaching that has been shown concerning Jenkins’s asserted failure to make a “reasonable effort to protect the student from conditions harmful to learning or to health and safety.”

The order suspending Jenkins’s teaching certificate is REVERSED and the proceedings against him are DISMISSED.

SHAW, J., concurs.

CAWTHON, VICTOR M., Associate Judge, dissents, without opinion.


text:
    TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER and Halifax Hospital Medical Center, Appellants, v. Gerald A. LEWIS as Comptroller of the State of Florida, Appellee.
    No. UU-235.
    District Court of Appeal of Florida, First District.
    May 29, 1981.

      John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, for appellants.
    Michael Basile, Tallahassee, for appellee.
   PER CURIAM.

Two regional referral hospitals appeal the lower court’s final judgment which dissolved its alternative writ of mandamus and upheld the comptroller’s authority to conduct an independent hearing of limited scope notwithstanding appellants’ certification which had stated that a “responsible county” was delinquent in its payment for services rendered by the appellants to indigents from that county pursuant to Section 154.314, Florida Statutes (1979). It is the position of the appellants that the comptroller had no authority to conduct such a hearing and that mandamus should lie to compel the comptroller to forward state monies to the appellants immediately upon receipt of certification without such a hearing.

Under Chapter 154, Florida Statutes, regional referral hospitals (such as the appellants) which perform services on behalf of indigents referred from counties, other than the county in which the hospital is located, are authorized to be reimbursed by the county where the indigent resides. Before the patient may be accepted, it is necessary that the county certify the patient as an indigent, or, if there is an emergency, that the county certify the necessity of emergency services if the attending doctor determines the existence of such an emergency. See § 154.306. Additionally, Section 154.-314 provides that if a county has not paid its bill within 60 days after being billed, the hospital is required to certify the amount due to the comptroller who shall forward the delinquent amount to the appropriate hospital from any funds due the county under revenue sharing or tax sharing funds established by the state.

The hospitals in the instant case complied with the statute and rules, but the comptroller inaugurated a hearing to determine the patients’ residence, the monetary value of the services provided, whether the indigents were emergency patients, whether they were in fact indigent, and whether adequate notice was given to the county. The appellants sought a writ of mandamus in the court below, and the court, by alternative writ of mandamus, directed that the proceeding before the comptroller be stayed. Later, however, the court entered a final judgment dissolving the writ, and in it held that the comptroller had a right to conduct a hearing, limited in scope, which need not be conducted in accordance with Chapter 120, for the purposes of determining (1) whether the responsible county had received a statement of services rendered by the hospital, (2) whether the county had failed to dispute the claim within 60 days after receipt of the statement, or, if it did so, (3) whether administrative remedies had been exhausted and 30 days had elapsed since the entry of a final administrative order.

We agree with the lower court that the comptroller possesses authority to conduct a hearing limited in scope to determine if the prerequisites of Section 154.314 have been satisfied under the powers bestowed to the comptroller by virtue of Chapter 17, Florida Statutes (1979). Cf. State, ex rel. Cherry v. Stone, 265 So.2d 56 (Fla. 1st DCA 1972). The provisions in Chapter 17 and Section 154.314 should be read together to permit this result.

Since we hold that the comptroller is entitled, as a matter of discretion, to hold a hearing before forwarding the funds to the appellant, it is clear that mandamus is, under the circumstances, an inappropriate remedy. Although mandamus will lie to force a public officer to act, it cannot be used to control his discretion. Green v. Walker, 161 So.2d 830 (Fla.1964). Moreover, a writ of mandamus cannot issue where a right in question is doubtful or not complete. See 21 Fla.Jur., Mandamus, § 25 (Rev. 1964). Relief cannot be afforded by mandamus as to issues that are unripe for determination. See Howell v. State, 54 Fla. 199, 45 So. 453 (1907).

The final judgment is affirmed.

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

      . The propriety of this portion of the order has not been made an issue by either of the parties to this appeal. A hearing complying with the dictates of Chapter 120 may of course be waived. City of Punta Gorda v. Public Emp. Relations Com’n, 358 So.2d 81 (Fla. 1st DCA 1978).

      . The comptroller has specific authority to hold' such hearings under Sections 17.03 and 17.05, Florida Statutes. Section 17.03, titled To Audit Claims Against the State, provides:
      (1) The Comptroller of this state, using generally accepted auditing procedures for testing or sampling, shall examine, audit, and settle all accounts, claims, and demands, whatsoever, against the state, arising under any law or resolution of the Legislature, and issue his warrant to the Treasurer directing him to pay out of the state treasury such amount as shall be allowed by the Comptroller thereon, (e.s.)
      Section 17.05 provides:
      The Comptroller of this state may demand and require full answers on oath from any and every person, party or privy to any account, claim or demand against or by the state, such as it may be his official duty to examine into, and which answers he may require to be in writing and to be sworn to before himself or before any judicial officer or clerk of any court of the state so as to establish such Comptroller to decide as to the justice or legality of such amount, claim or demand.


text:
    James Olan WOOD, Appellant, v. STATE of Florida, Appellee.
    No. VV-12.
    District Court of Appeal of Florida, First District.
    May 29, 1981.
    Michael Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant has appealed from the judgment entered upon his nolo contendere plea to second degree murder, contending that the trial court erred in denying his motion to suppress statements obtained from him during in-custody interrogation. Pursuant to Brown v. State, 376 So.2d 382 (Fla.1979), appellant has not reserved a legally disposi-tive issue and, therefore, is not entitled to an appeal. Since appellant’s plea was entered well after finality of the Brown decision, his plea is hereby dismissed and appellant need not be afforded an opportunity to withdraw his plea.

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    Joseph JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. VV-218.
    District Court of Appeal of Florida, First District.
    May 29, 1981.

      Michael Allen, Public Defender, and Melanie Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Johnson appeals his judgment and sentence following a conviction of aggravated assault and armed robbery. Appellant’s first point is without merit and we affirm. However, his second point, alleging that the trial court erred in sentencing him to an indeterminate sentence of not less than three years nor more than life and in indicating that the three-year mandatory minimum sentence applied for use of a firearm, requires reversal.

The evidence at trial indicated one of two robbers actually possessed a firearm. The evidence wholly failed to identify Johnson as the robber possessing the gun. The jury was instructed on an aider and abettor theory and subsequently returned a verdict of guilty as charged. In Earnest v. State, 351 So.2d 957 (Fla.1977), the court held that the three-year mandatory minimum term of imprisonment did not apply to persons convicted of armed robbery who had only vicarious possession of the firearm, construing Section 775.087(2), Florida Statutes (1975). Séction 775.087(2), Florida Statutes (1979), applicable here, has identical provisions. Although this case is factually distinguishable from Earnest in that the evidence at trial affirmatively showed Earnest had only vicarious possession, we think the principle of Earnest applies in this factual situation where no evidence was presented showing appellant actually possessed the firearm and the jury was instructed on an aider and abettor theory. Thus, under these circumstances, although the evidence was clearly sufficient to support the crimes charged, neither the evidence nor the verdict support imposition of the three-year mandatory minimum sentence. Finally, after reviewing the sentencing hearing and the sentencing papers, it is not clear to us whether the judge really imposed an indeterminate sentence or a life sentence with the three-year mandatory minimum to apply. See Section 921.18, Florida Statutes (1979). Therefore, appellant’s sentence is vacated and the case remanded to the trial court for an appropriate sentence in accordance with this opinion.

Judgment affirmed; sentence vacated and case remanded.

ERVIN, J., and LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.


text:
    Grover Cleveland ALEXANDER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. UU-381.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Michael Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The record supports the trial court’s ruling that appellant’s confession was voluntary. The confession issue was legally preserved for review because the prosecutor and defense counsel stipulated before entry of appellant’s nolo contendere plea that the ruling on the voluntariness of the confession was dispositive of the case. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980). Upon entry of his nolo conten-dere plea, appellant also reserved the right to appeal the trial court’s denial of his motion to suppress evidence seized during a warrantless search of the trunk of his car. However, the record contains no indication, in the form of stipulation or otherwise, that the ruling on that motion was dispositive of the case. Therefore, pursuant to Brown v. State, 376 So.2d 382 (Fla.1979), that issue has not been properly preserved for review. Since appellant’s plea was entered after finality of the Brown decision, he is not entitled to withdraw his plea even though he is unable to seek the full appellate review upon which his plea was conditioned. Hardison v. State, 385 So.2d 788 (Fla. 2d DCA 1980).

AFFIRMED.

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    James Lisk GADDY, Appellant, v. STATE of Florida, Appellee.
    No. VV-11.
    District Court of Appeal of Florida, First District.
    June 1, 1981.

      Michael Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals from his conviction of armed robbery, contending that the trial court erred in denying his motion to suppress the fruits of a search of his automobile which was made following his arrest for speeding and driving under the influence of alcohol. Although we do not agree with the trial court’s conclusion that the evidence was seized pursuant to a valid inventory search, we find that the search was valid on other grounds. The officers who seized the evidence were justified in the search of the front seat area of appellant’s vehicle because they had probable cause to believe that it contained a concealed firearm and exigent circumstances existed for such search. See Benton v. State, 329 So.2d 385 (Fla. 1st DCA 1976).

AFFIRMED.

McCORD, BOOTH and SHIVERS, JJ., concur.


author: MILLS, Chief Judge.

text:
    BREVARD COUNTY CLERK OF COURT and U. S. Fidelity & Guaranty Co., Appellants, v. Kenneth L. WINSLOW, Appellee.
    No. XX-201.
    District Court of Appeal of Florida, First District.
    June 1, 1981.

      John R. Gierach of Gierach & Ewald, P. A., Orlando, for appellants.
    Gavin D. Lee of Maynard & Lee, P. A., Winter Park, for appellee.
   MILLS, Chief Judge.

Employer-carrier challenge the deputy commissioner’s award of permanent total disability on the ground that there was no competent substantial evidence to support the finding. We agree, reverse, and remand for a determination of the amount of permanent partial disability, if any.

The parties stipulated that claimant suffered a compensable accident on 26 August 1976 and that the date of maximum medical improvement was 1 July 1977. All temporary total disability due had been paid. At issue was whether claimant was eligible for permanent total disability benefits or permanent partial disability benefits. The deputy found claimant to be permanently totally disabled. Having found claimant to be permanently totally disabled, the deputy determined that some of the ailments were related to the industrial injury and were approximately equal to those unrelated to the injury; therefore, he apportioned the payment of benefits to 50% permanent total disability.

The record shows that Winslow made no attempt to return to his prior employment or to search for any other employment. Although he stated that he is unable to work, his claim is not supported by the medical evidence. Nor did the deputy’s order find that a work search was excused. An adequate work search required for a finding of permanent total disability was not conducted. See Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975).

We are unable to determine the method by which the deputy commissioner arrived at the apportionment of permanent total disability benefits. Since we are reversing and remanding this cause for reconsideration of the amount of permanent partial disability benefits which Winslow is due, if any, we need not resolve our concern with that determination but we remind the deputy that an order should contain the degree of specificity necessary to enable this Court to determine how he arrived at his conclusions. Kennedy v. Tyson, 382 So.2d 820 (Fla. 1st DCA 1980).

The entitlement to and amount of attorney’s fees will, of course, be affected by the rulings made by the deputy commissioner on remand.

REVERSED and REMANDED with directions.

SHAW, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.


text:
    TALLMAN POOLS OF GEORGIA, INC., a Georgia Corporation, Appellant, v. Douglas C. WOOD, and Caroline Wood, Appellees.
    No. ZZ-26.
    District Court of Appeal of Florida, First District.
    June 1, 1981.

      Carlton R. Reichert, P.A., St. Petersburg, for appellant.
    O. E. Adams, Sr., Pensacola, for appel-lees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellant, sued for unliquidated damages, suffered a default judgment for its failure to timely file a responsive pleading after being served through substituted service. Appellant’s motion to set aside the default was denied, whereupon the court, without a hearing on the amount of the unliquidated damages and based solely upon the affidavit of one of the appellees, entered a final money judgment for appellees.

Appellant’s first point, that the trial court erred in refusing to set aside the default, is without merit. A motion to vacate a default may be granted within the sound discretion of the trial court upon a showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. Winter Park Arms, Inc. v. Akerman, 199 So.2d 107 (Fla. 4th DCA 1967). Appellant’s motion to vacate the default did not adequately meet either of these requirements.

Appellant’s second point, that the trial court erred in entering final judgment without notifying appellant of a trial or hearing on the question of unliquidated damages, has merit. A party against whom a default has been entered, where the action is one involving unliquidated damages, is entitled to notice of an order setting the matter for trial, and an opportunity to defend. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). Here the trial court, after denying appellant’s motion to vacate the default judgment, immediately and without the matter having been noticed for trial on the issue of unliquidated damages, entered final judgment for appellees based solely upon a previously filed ex parte affidavit of one of the appellees.

The order denying appellant’s motion to vacate the default is affirmed. The final judgment for appellees is reversed and this cause remanded to the trial court for trial, after notice, on the issue of appellees’ damages.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ERVIN, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.