author: FRANK D. UPCHURCH, Judge.

text:
    John Robert HOOVER, Appellant, v. The STATE of Florida ex rel. Robert EAGAN, State Attorney for the Ninth Judicial Circuit of Florida; Orlando Police Department, Agency of the City of Orlando, A Municipal Corporation existing under the laws of the State of Florida; Winter Park Police Department; and Lawson L. Lamar, Sheriff of Orange County, Florida, Appellees.
    No. 81-356.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      Gregory M. Wilson of Taylor & Wilson, Orlando, for appellant.
    Jim Smith, Atty. Gen., Susan E. Gamble, Asst. Atty. Gen., and Terry Bowden, Certified Legal Intern, Tallahassee, for appellee State of Florida ex rel. Robert Eagan.
    Jody M. Litchford, Orlando, for appellee Orlando Police Dept.
   FRANK D. UPCHURCH, Judge.

This is an appeal from a judgment of forfeiture of $73,500 which appellant Hoover had used to purchase 300 pounds of marijuana during an undercover drug operation. At the forfeiture hearing, Hoover argued that the currency was not subject to forfeiture under chapter 943, Florida Statutes (Supp.1980). The trial court held that the currency was contraband as defined in section 943.41(2)(a), Florida Statutes (Supp. 1980), and ordered the $73,500 forfeited.

The question on appeal is whether the Florida Contraband Forfeiture Act makes United States currency used to purchase illegal drugs subject to forfeiture. Hoover contends that as a matter of law currency, even though used to purchase illegal drugs, is not subject to forfeiture.

Sections 943.41-943.44 comprise what is known as the “Florida Contraband Forfeiture Act.” Section 943.41(2), Florida Statutes (Supp.1980), defines “contraband article” as:

(a) Any controlled substance as defined in chapter 893 or any substance, device, paraphernalia, or currency or other means of exchange which has been, is being, or is intended to be used in violation of any provision of chapter 893. (emphasis added)

Section 943.42, Florida Statutes (Supp. 1980), provides that:

It is unlawful:
(4) To conceal or possess any contraband article.

Hoover admits that as the $73,500 was used to purchase marijuana in violation of section 893.135(1)(a)(1), the currency is contraband pursuant to section 943.41(2)(a) and that its possession is unlawful pursuant to section 943.42(4). However, Hoover notes that forfeitures are not favored and that' the statutes authorizing forfeitures must be strictly construed. See, e.g., Boyle v. State, 47 So.2d 693 (Fla.1950); City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (Fla.1941). While conceding that the currency is contraband and its possession unlawful, Hoover argues that chapter 943 fails to strictly provide for its forfeiture.

In support of his contention, Hoover refers to certain amendments to the act effective July 1, 1980. Prior to 1980, section 943.43 provided as follows:

Forfeiture of vessel, motor vehicle, or aircraft; exceptions. — Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s.943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss.943.41-943.44, unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss.943.41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States, (emphasis added)

In 1980, the Legislature rewrote section 943.43 as follows:

Forfeiture of vessel, motor vehicle, aircraft, other personal property, or contraband article; exceptions.- — (1) Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s.943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interest in and title to contraband articles or contraband property used in violation of s.943.42 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interests in accordance with this act. Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act. In any incident in which possession of any contraband article defined in s.943.41(2)(a)-(d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. It shall be presumed in the manner provided in s.90.-302(2) that the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure, is being used or was intended to be used in a manner to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of a contraband article defined in s.943.41(2)(a)-(d). (emphasis added)

A comparison of the two provisions shows that the words “and may be forfeited” were deleted and that the sentence underlined above was added in 1980. Based on these changes, Hoover argues that forfeiture is now permitted only in those situations in which possession of contraband constitutes a felony and even then, forfeiture is permitted only for those vessels, motor vehicles, aircraft or personal property in or on which the contraband is located.

We reject this contention. Statutory provisions relating to the same subject matter must be read in pari materia. Major v. State, 180 So.2d 335 (Fla.1965). In State v. Gale Distributors, 349 So.2d 150, 153 (Fla.1977), the Florida Supreme Court stated:

[I]t is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a view of the whole law in pari materia, the court will determine legislative intent.

To give section 943.43 the meaning suggested by Hoover would result in the nullification of other portions of the act. For example, section 943.44(1) provides that “The state attorney within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized ... shall promptly proceed against the contraband article, vessel, motor vehicle, aircraft, or personal property ... and may have such contraband article, vessel, motor vehicle, aircraft, or other personal property forfeited ... upon producing due proof that the contraband article, vessel, motor vehicle, or other personal property was being used in violation of the provisions of such laws.” Section 943.-44(3)(b) provides that “any forfeited money or currency, ... shall be equitably distributed. ...”

Hoover’s contention that only vessels, motor vehicles, aircraft and personal property containing contraband are subject to forfeiture would render meaningless the words “contraband articles” and “forfeited money or currency” used in the provision cited above. Courts cannot presume that the legislature employed useless language in enacting a statute. See Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969). Hoover’s conclusion that forfeitures are limited to vessels, motor vehicles, aircraft, or personal property in which contraband is located fails to view the contraband forfeiture act in pari materia and results in the nullification of other portions of the act.

Hoover’s interpretation of the forfeiture provisions is also contrary to the legislative intent behind the act. An elementary rule of statutory construction is that effect must be given to the intention of the legislature. Singleton v. Larson, 46 So.2d 186 (Fla.1950); Sunshine State News Co. v. State, 121 So.2d 705 (Fla. 3d DCA 1960). To ascertain this intent, courts must look to the history, objective and purpose of the legislation. Singleton v. Larson; Sunshine State News Co. v. State.

The Florida Uniform Contraband Transportation Act, retitled The Florida Contraband Forfeiture Act in 1980, was enacted as part of chapter 73-331, Laws of Florida. As expressed in its introductory language, the intent of the Legislature was that the “State of Florida exercise more authority over manufacture and distribution of dangerous drugs.” The Legislature also intended that the Florida forfeiture statute be in uniformity with its federal counterpart.

Title 49 U.S.C. §§ 781 and 782 are the federal counterparts to the Act and are substantially similar. See Griffis v. State, 356 So.2d 297 (Fla.1978). In the 1950 amendment to the federal forfeiture statute, the congressional committee report accompanying the amendment clearly expressed the legislative intent:

Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it.... The proposed legislation is intended to provide additional means of combating this nefarious activity.

Griffis v. State, 356 So.2d at 300.

Sections 943.41(2)(a) and 943.42(4) of the Florida Contraband Forfeiture Act make the possession of currency or other means of exchange used in violation of chapter 893 (Drug Abuse Prevention and Control) illegal. We construe sections 943.-43 and 943.44 of the act as providing for the seizure and forfeiture of such contraband.

AFFIRMED.

DAUKSCH, C. J., and COWART, J„ concur.

      . Section 893.135, Florida Statutes (1979), provides in part as follows:
      (1) Except as authorized in this chapter or in chapter 500:
      (a) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 100 pounds of cannabis is guilty of a felony of the first degree, which felony shall be known as “trafficking in cannabis.” If the quantity of cannabis involved:
      (1) Is in excess of 100 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 calendar years and to pay a fine of $25,000.

      . § 943.41(1), Fla.Stat. (Supp.1980).

      . The language of sections 943.41 through 943.-44 was originally contained in section 893.12, Florida Statutes (1975).


source: Caselaw Access Project

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

license: Public Domain

text:
    Curtis Lee HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 81-377.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    Rehearing Denied Feb. 19, 1982.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This cause is moot under the holding in Harrison v. Wainwright, 408 So.2d 800 (Fla. 5th DCA 1982).

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


author: COWART, Judge.

text:
    John A. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-421.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

John A. Carter appeals from an order finding him in continuing civil contempt of the trial court for failure to furnish handwriting samples as ordered and challenges the legality of the sentence upon the contempt. We affirm.

Carter was charged with making written threats to kill or do bodily injury to another, in violation of section 836.10, Florida Statutes (1979). The court, upon the State’s motion, ordered Carter to execute handwriting samples and furnish them to the State. Carter refused to execute the handwriting samples and the State filed a petition with the court seeking to have the court hold Carter in contempt for failure to comply with the order. The court issued an order to show cause and subsequently rendered an order reciting the above facts and finding Carter to be in continuing civil contempt of court. The order sentenced him to serve 90 days in the county jail, with a provision for purging by execution of the handwriting samples; if Carter had not executed the samples by then, he was to be returned before the court and sentenced to another 90 days under the same terms. The pattern of resentencing was to continue until Carter complied with the order.

Carter did not purge himself of the contempt, and in 90 days he was returned before the court for resentencing. At that time, defense counsel suggested that the original use of civil contempt was inappropriate, arguing that only criminal contempt was available in criminal cases, and requested that new criminal contempt proceedings be instituted. The court recognized that the purpose of the proceedings was to enforce the court’s order and refused to allow new proceedings to be instituted, instead treating the hearing as a continuation of the first proceeding. Defense counsel admitted that the order had not been complied with, so the court found Carter “in indirect contempt of court, in direct criminal contempt” and orally sentenced him to serve 90 days with provision for purging. The court’s written sentence, however, recited that the court found Carter to be in continuing civil contempt and sentenced Carter to another 90 days under the repeating 90 day sentence provision of the first civil contempt order. Carter appeals from this sentence.

The purpose of civil contempt proceedings is to preserve and enforce the rights of parties to suits and to compel obedience to orders and decrees made for the benefit of such parties; the proceedings are generally remedial and civil in nature. Deter v. Deter, 353 So.2d 614 (Fla. 4th DCA 1977); In re S. L. T., 180 So.2d 374 (Fla. 2d DCA 1965). Since the general purpose of civil contempt is to coerce action or inaction, orders directing confinement must provide for release upon the contemnor’s purging himself of contempt and are generally indefinite without a fixed term. Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956); Adirim v. City of Miami, 348 So.2d 1226 (Fla. 3d DCA 1977). The purging provision is essential to confinement for civil contempt. State ex rel. Byrd v. Anderson, 168 So.2d 554 (Fla. 1st DCA 1964).

Criminal contempt, on the other hand, is maintained solely to vindicate the authority of the court or to punish conduct in violation of a court order. Demetree; Adirim. The purpose of criminal contempt proceedings is punishment, rather than coercion; punishment for criminal contempt may be by fine or imprisonment or both, but the terms and amounts must be definitely stated. Satterfield v. Satterfield, 39 So.2d 72 (Fla.1949); In re S. L. T. No provision for purging is required. In re S. L. T.

The order finding appellant to be in contempt of court and sentencing him therefor provides that he is to remain in jail for 90 days or until he complies with the court order; if at the end of that 90 days he has not complied, he is to be sentenced to another 90 days under the same conditions. The order provides that this pattern of resen-tencing will continue until appellant complies with the court order. Thus, in effect, the order is an indefinite sentence with provision for purging, as is proper for a civil contempt. Successive resentencing for the same offense would be constitutionally impermissible as punishment for a criminal contempt.

Appellant argues that, since he was found to be in criminal contempt of court, the indefinite sentence is improper. This would be true if, in fact, appellant was guilty and culpable only for a criminal contempt. However, the sentence attacked in this appeal is part of the valid continuing indefinite sentence with provision for purging for the appellant’s indirect civil contempt of court, the purpose of which is to coerce him into complying with the court’s order. The court’s use of the word “criminal,” while incorrect, is not controlling. Likewise, the court’s use of the term “sentence” to describe what was in substance the imposition of confinement upon appellant for his civil contempt is not controlling. Appellant also argues that, since this is a criminal case, criminal contempt was the only contempt available to the trial judge. This argument is incorrect; both civil and criminal contempt are available in both civil and criminal cases. The determination of whether contempt proceedings are civil or criminal goes to the nature of the contemptuous acts and the purpose of the proceedings (coercion or punishment or both) and is not dependent on the nature of the cause from which the contempt citation arose. Deter; In re S. L. T. The trial judge during the hearing specifically refused to terminate the civil contempt proceedings and to institute criminal contempt proceedings upon the appellant’s request. The written order accurately reflects the trial judge’s intention to coerce compliance by the appellant and, as a disposition in a civil contempt proceeding, it is correct. The order finding Carter in contempt and confining him for the purpose of compelling compliance with the court’s order is

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Aaron v. State, 284 So.2d 673 (Fla.1973), holds that a criminal contemnor may receive a maximum sentence of six months if no jury trial is had on the criminal contempt, and one year if jury trial is held.

      . Also, greater procedural due process safeguards are applicable to criminal contempt. See State ex rel. Coody v. Muszynski, 404 So.2d 165 (Fla. 5th DCA 1981); Fla.R.Crim.P. 3.830, 3.840.


author: COBB, Judge.

text:
    Jeffrey BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-465.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      Terrence J. McWilliams and John H. Li-pinski, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, James Dickson Crock and Richard B. Mar-tell, Asst. Attys. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Brown appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief in which he alleged his counsel provided ineffective assistance. Because Brown alleged a prima facie ground for relief, i.e., ineffective assistance of counsel, the trial court erred by denying the motion without conducting an evidentiary hearing or without attaching relevant portions of the file and record. See Fla.R.Crim.P. 3.850. This cause is therefore remanded for sixty (60) days in order for the trial court to either (1) attach that portion of the file and record that conclusively refutes the two meritorious allegations, or (2) conduct an evidentia-ry hearing to determine whether Brown’s motion to suppress was meritorious and whether his counsel ever contacted him regarding his defense prior to trial. Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So.2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So.2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So.2d 1106 (Fla. 5th DCA 1981).

REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . Three motions were actually filed: the original, a supplement thereto, and an “Amended Motion to Vacate Judgment and Sentence,” which incorporated by reference the allegations of the prior two.

      . The state in effect agrees that Brown’s motion establishes a prima facie ground for relief: it argues that the cause should be remanded to allow the trial judge to attach the relevant portions of the file and record. If the motion was facially insufficient, the trial judge did not err by simply denying the motion. See Fla.R.Crim.P. 3.850; Van Bever v. State, 405 So.2d 474 (Fla.1981). We would point out, however, that even where the motion is facially insufficient, the trial court should set forth the specific basis of its ruling. See Committee Note, Fla.R.Crim.P. 3.850; Van Bever, 405 So.2d at 475.

      . The only two allegations which establish a ground for relief are that counsel withdrew a meritorious motion to suppress and that counsel never consulted with Brown concerning his defense until the trial began. If Brown’s motion to suppress would have succeeded, the act of withdrawing it, standing alone, meets the requirements of Knight v. State, 394 So.2d 997, 1000-1001 (Fla.1981).

      .In view of the affidavit by trial counsel (Brown has since obtained different counsel) in which he confesses his sins, though without passing on the issue, we question the continued existence of the privilege to practice law in this state when privately retained counsel voluntarily accepts a case, Knowing full well his inabilities and inexperience in the matter, and then fails to sufficiently research and study the law to enable adequate representation. We leave that determination to the proper grievance authority.


text:
    Clint Ivory CURTIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-552, 81-565.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, and Edward W. Dougherty, Jr., Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is an appeal from a conviction for trafficking in stolen property. The point on appeal urged by the appellant involves the state’s rebuttal witness being allowed to testify, even though allegedly he was not a listed witness in accordance with Florida Rule of Criminal Procedure 3.220.

The state furnished a witness list to appellant which had the name “June Counts” and address “7991 S.E. 3rd Avenue, Ocala, Florida” listed. A person by the name of June Counts, Jr. with a 7th Avenue address testified during the state’s case in chief. There was no objection by the appellant to this witness’ testimony. On rebuttal the state called June Counts III to testify. He lived at the 3rd Avenue address. The appellant objected to this witness testifying and seeks our reversal saying the court abused its discretion in allowing the testimony without first conducting a Richardson inquiry to determine whether appellant was prejudiced by the alleged discovery violation.

As can be seen by careful analysis, which the appellant failed to do both at trial and on appeal, the first June Counts “Jr. from 7th Avenue” was the one about whom the objection, if any, should have been made, rather than the June Counts who lived on 3rd Avenue and whose name and address were listed on the witness list.

The conviction is affirmed.

AFFIRMED.

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: DAUKSCH, Chief Judge.

text:
    OMNI CONSTRUCTION CORPORATION, a Florida corporation, Appellant/Cross-Appellee, v. PHRAZER CO., INC., a Georgia corporation, a/k/a Phrazer Company, Inc., Appellee/Cross-Appellant.
    No. 81-576.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    John P. Ingle, III and Burton Spraker of Thomas & Thomas, P. A., Orlando, for appellant/cross-appellee.
    Richard H. Adams, Jr. of Gray, Adams, Harris & Robinson, P. A., and Lawrence D. Johnson of Peacock & Johnson, Orlando, for appellee/cross-appellant.
   DAUKSCH, Chief Judge.

Upon review of the judgment in this suit involving a dispute between a building contractor and its customer we find there is sufficient legal evidence to support all of the findings of the trial judge except that portion of the damages awarded for the installation of the gutters and downspouts. It was the owner of the building who refused to have those items installed on the building, even though the builder recommended them. As concerns the cross-appeal alleging the error of the trial court in refusing to award any amount for lost rents we agree with the finding of the trial judge that there was insufficient proof of this alleged loss.

The judgment is affirmed except for that portion of it which awards damages for the gutters and downspouts and the case is remanded for a determination of the proper amount and deletion of that portion of the judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COBB and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Herbie MOHAMMED a/k/a Kem Stewart, Appellant, v. STATE of Florida, Appellee.
    No. 81-623.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Appellant pled nolo contendere but failed to reserve his right to appeal any issue. Therefore, we have no jurisdiction to entertain this appeal. See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981). Accordingly, this appeal is dismissed without prejudice to appellant to seek appropriate collateral relief in the trial court. The public defender’s motion to withdraw is hereby granted.

DISMISSED.

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


text:
    James David DOWNEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-638.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

The orders Downey seeks us to review have not been reduced to a written judgment, and therefore, have not been “rendered.” We dismiss this appeal because of lack of jurisdiction. See State v. Wells, 326 So.2d 175 (Fla.1976).

DISMISSED.

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

      . Fla.R.App.P. 9.020(g).


author: ORFINGER, Judge.

text:
    Richard J. LYNCH, Petitioner, v. STATE of Florida, Respondent.
    No. 81-1332.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      Joseph W. DuRocher, Public Defender, and Thomas E. Doss, II, Asst. Public Defender, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for respondent.
   ORFINGER, Judge.

Petitioner appealed to the Circuit Court from a judgment of conviction entered by the County Court. On May 11, 1981, the Public Defender’s office, on behalf of petitioner, filed in the Circuit Court a motion to extend the time for filing his initial brief because of delay in the preparation of the record on appeal, asserting that the State Attorney had no objection to the granting of the extension.

Although no order was entered on the motion for extension of time, on July 29, 1981, the circuit judge wrote a letter to the Public Defender’s office advising that the appeal would be dismissed unless a brief was filed on or before August 12, 1981. A copy of the letter was filed in the court file. On August 5, 1981, the State served a motion to dismiss the appeal because the time for filing briefs had expired and appellant’s brief had not been filed. On the same day, without notice or a hearing, the court entered an order dismissing the appeal. A timely motion to reinstate the appeal was denied, despite a showing that appellant’s brief was filed on August 7, 1981, and petitioner seeks a writ of certiorari.

Petitioner alleges that the failure to reinstate the appeal in the light of the facts here constitutes a departure from the essential requirements of law, such as to cause petitioner irreparable injury which cannot be remedied by appeal. It seems contrary to fundamental fairness, and thus a violation of petitioner’s right to due process of law, to advise him that he had until August 12, 1981 to file his brief, and then dismiss the appeal on August 5th. In the light of the foregoing, and considering also the fact that petitioner’s brief was filed on August 7th, well within the time frame set by the court, there was a departure from the essential requirements of law which results in irreparable injury in the denial of petitioner’s motion to reinstate his appeal. See State v. Wagner, 403 So.2d 1349 (Fla. 5th DCA 1981).

The petition for certiorari is GRANTED, and the order denying petitioner’s motion to reinstate the appeal is QUASHED.

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

      . In his petition for writ of certiorari, petitioner repeats that assertion and in its response the State does not challenge its accuracy.


text:
    STATE of Florida, ex rel., Diego GUZMAN and Miguel Gordillo, Petitioners, v. Honorable L. R. HUFFSTETLER, Jr., and all other Judges of the Circuit Court in and for the Fifth Judicial Circuit of Florida, Respondents.
    No. 82-80.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      Richard A. Beiley of Bierman, Sonnett, Beiley & Shohat, P. A., Miami, for petitioners.
    No appearance for respondents.
   ORFINGER, Judge.

Petitioners seek a writ of prohibition to prohibit respondent from trying them on charges of trafficking in cannabis. Petitioners were taken into custody on May 25, 1981, and the speedy trial period would have run on November 21, 1981. On November 19, 1981, the trial court entered a written order granting the State’s motion to toll the speedy trial time. The trial court specifically found that the case was so unusual and complex as to meet the criteria of Florida Rule of Criminal Procedure 3.191(f), permitting an extension of time on motion by the State under “exceptional circumstances.”

Petitioners contend that the facts upon which the State relied in order to show “exceptional circumstances” do not justify such finding, and that their motion for discharge should have been granted.

Prohibition may be properly granted when a lower tribunal is without jurisdiction or attempting to act in excess of its jurisdiction. Its purpose is to prevent the doing of something, not to undo something already done. English v. McCrary, 348 So.2d 293 (Fla.1977).

Where, as in this case, the trial court grants an extension of time for trial because it finds “unusual circumstances” and the extension order is entered before speedy trial time has run, jurisdiction of the trial court continues, Klein v. Smith, 366 So.2d 1206 (Fla.3d DCA 1979), even if the appellate court believes the extension order to have been in error. State ex rel. Mullins v. Swigert, 345 So.2d 386 (Fla. 1st DCA 1977).

We therefore deny the writ of prohibition without prejudice to the right of petitioner to question the correctness of the extension order and the denial of the motion for discharge on appeal from a final judgment.

Prohibition DENIED.

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

      . We express no view as to the propriety of the extension order entered here.


author: PER CURIAM.

text:
    LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, Appellant, v. MARTIN COUNTY LITTLE CLUB, INC., and Hobe Sound National Bank, Appellees.
    Nos. 79-2234, 79-2270, 79-2271 and 79-2598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.

      Kenneth J. Scherer of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellant.
    Robert S. McDaniel, Jr., of McDaniel & Ball, Sarasota, and William G. McDaniel of McDaniel, Chorey & Taylor, Atlanta, Ga., for appellee, Martin County Little Club, Inc.
    John E. Prewitt, and W. Thomas Wack-een, Stuart, for appellee, Hobe Sound Nat. Bank.
   PER CURIAM.

This is an appeal from the trial court’s entry of a Summary Final Judgment on a crossclaim and a denial of a motion to strike and/or quash crossclaim and motion for summary judgment.

Appellant, Loxahatchee River Environmental Control District (ENCON), and ap-pellee, Martin County Little Club, Inc., (Little Club), entered into an agreement whereby Little Club as developer was allowed to construct an interim sewer and wastewater collection system for a project under development. An amendment to this agreement required Little Club to place in escrow with appellee, Hobe Sound National Bank (Bank), certificates of deposit in the name of ENCON in a face value of $44,000. The certificates of deposit were to be held by the Bank until the interim sewer system was connected to a central sewage system, at which time ENCON was to receive the certificates of deposit. The escrow agreement further provided that if ENCON failed to connect the regional sewage and wastewater system to the developer’s system within seven years, Little Club was to receive the certificates.

In the main action, which is not the subject matter of this appeal, damages are sought by ENCON for breach of the agreement. By way of a crossclaim, Little Club sought damages against the Bank based upon the Bank’s breach of the escrow agreement which allegedly had obligated the Bank to transfer certificates of deposit to Little Club. ENCON was not named as a party to the crossclaim filed October 12, 1979. On October 17, 1979, Little Club mailed a copy of a motion for summary judgment on its crossclaim against the Bank to ENCON. A hearing on this motion for summary judgment was scheduled before the trial court on the next day, the Bank apparently having waived the twenty-day notice provision of Rule 1.510(c), Florida Rules of Civil Procedure. In its response to the motion for summary judgment, EN-CON filed a motion to strike and/or quash the crossclaim and motion for summary judgment. ENCON was not given notice of the hearing on the motion for summary judgment and the motion was granted with Summary Final Judgment entered by order dated November 27, 1979.

ENCON has argued that it was an indispensable party and should have been joined in the crossclaim and given notice of the summary judgment. We agree. EN-CON was a party to the escrow agreement as well as the basic underlying agreement with Little Club. ENCON also was the party in whose name the certificates of deposit were issued. Under these circumstances, ENCON certainly was an indispensable party to the crossclaim. That being the case, summary judgment should not have been granted. Issues of fact remained which precluded summary disposition.

We reverse and remand to the trial court for further proceedings with the crossclaim-ant, Martin County Little Club, Inc., having leave to amend its crossclaim.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., and RUTTER, R. WILLIAM, Jr., Associate Judge, concur.


author: HERSEY, Judge.

text:
    Sharon Elizabeth KERNS, Appellant, v. Wilbur Harlan KERNS, Appellee.
    No. 80-1937.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.

      Charles I. Cohen, Boca Raton, and Edna L. Caruso, West Palm Beach, for appellant.
    Michael J. Pucillo of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellee.
   HERSEY, Judge.

Sharon Kerns appeals the dismissal with prejudice of her petition to set aside a property settlement agreement. The order of dismissal, entered upon motion of appellee, husband, after presentation of appellant’s case, contained the following findings:

[T]he evidence presented by the Wife failed to show any fraud, coercion or duress by the Husband against the Wife in conjunction with the Property Settlement Agreement and that the evidence showed that the Wife freely and voluntarily entered into the agreement with knowledge of the financial situation of the Husband.

It. is black letter law that the party seeking to set aside a property settlement agreement has the burden of establishing fraud, coercion, duress or concealment. Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981). In the absence of such a showing, the agreement, as any other contract, is “... valid and binding on the parties and should be respected by the courts.” Zakoor v. Zakoor, 240 So.2d 193, 197 (Fla. 4th DCA 1970).

It has become equally well established, however, that if such an agreement is unreasonable on its face then a presumption of concealment arises and the burden shifts to the proponent of the agreement to prove its validity. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962); Baker v. Baker, supra. Where facial unreasonableness is alleged, the trial court is obliged to treat and dispose of that issue before proceeding to the merits in order to allocate the burden of proof to the appropriate party. Fleming v. Fleming, 408 So.2d 238 (Fla. 4th DCA 1981). We are unable to find any indication in the record that such a determination was made here.

Thus we are confronted with the issue of whether or not the allegations of appellant’s petition were sufficient to put the trial court on notice of a claim of facial unreasonableness of the agreement. We determine that the allegations, although inartfully drawn, were sufficient to raise that issue.

The petition alleges, inter alia:

3. That the grossly disproportionate benefit to the Husband in the Agreement as incorporated by the Final Judgment, together with sufficient course of circumstances as hereinbefore mentioned exhibit a situation in which the Wife was not able to comprehend the situation that she was involved in.
4. The Property Settlement Agreement as incorporated in this Court’s Final Judgment of Dissolution of Marriage was inequitable to the former wife and furthermore is to the detriment of the parties minor children.
5. The Property Settlement Agreement entered into by the former wife is a totally [sic] unfair, overreaching, unequal distribution of property.

We therefore reverse and remand for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD, J., concur.


text:
    William A. FUSCO and the Fronton, Inc., Appellants, v. Blase Edward PROTO, Appellee.
    No. 80-2034.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Pruitt & Pruitt and Larry Klein, West Palm Beach, for appellants.
    John F. Law, Palm Beach, for appellee.
   PER CURIAM.

In this action for malicious prosecution, which resulted in a jury verdict and judgment favorable to plaintiff, defendant contends that the court erred in denying its motion for directed verdict because, the facts relating to the existence of probable cause being without dispute, the trial court was required to rule as a matter of law that defendant had probable cause to commence the proceedings against the plaintiff.

In City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979), it was held that in an action for malicious prosecution, where the facts are not in dispute, the existence of probable cause is to be determined by the court as a matter of law. However, in this case the record discloses a factual dispute as to whether there was probable cause for the charges initiated by the defendant against plaintiff, and thus the court properly submitted the issue to the jury upon appropriate instructions.

AFFIRMED.

ANSTEAD, BERANEK and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Kris KOURTIS, Appellant, v. EASTERN AIRLINES and Florida Commission on Human Relations, Appellees.
    No. 80-2189.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.

      Cristina DeOliveira of Law Office of Irving Weinsoff, Miami, for appellant.
    Robert C. Owens and Ella K. Solomons, Miami, for appellee-Eastern Airlines.
    Aurelio Durana, Asst. Gen. Counsel, Tallahassee, for appellee-Florida Commission on Human Relations.
   DOWNEY, Judge.

This appeal concerns an order of the Florida Human Relations Commission (the Commission) denying appellant’s complaint based on discrimination due to age and handicap, and denying a petition for re-determination.

Appellant, age sixty-one, was employed by appellee, Eastern Airlines, since 1949. He worked as a Senior Work Controller in Eastern’s Operations Service Department in Miami, Florida. While on four month sick leave, he was notified that he was being “surplussed” and upon return to work he was formally notified that his position was being eliminated. Eastern intended to place Kourtis on a Special Assignment team with no loss of salary or benefits while Eastern attempted to place him in a new permanent position. However, Kourtis advised Eastern that he elected to take severance pay and early retirement. Several days later Kourtis filed a complaint with the United States Department of Labor, alleging that he had been discriminated against because of his age. The Department of Labor investigated Kourtis’s claim and found it to be without merit. Subsequently, Kourtis initiated this proceeding by filing a complaint with the appellee, Florida Human Rights Commission, pursuant to Part IX of Chapter 23, Florida Statutes (1979). The complaint was dismissed as untimely, whereupon Kourtis filed a petition for re-determination. A hearing was held thereon, argument of counsel considered and the petition denied.

Appellant has posed four questions for our consideration, all of which we have duly considered. However, we find no reversible error demonstrated by any of said questions. The Commission dismissed appellant’s complaint because it was not timely filed. Part IX of Chapter 23, Florida Statutes, requires that any person who is aggrieved by a violation of the Act may file a complaint with the Commission within 180 days of the alleged violation. This period of time was not tolled by the filing of a complaint with the United States Department of Labor. Nor do we believe that instructions given appellant by labor department personnel can be used to estop the Florida Human Relations Commission from enforcing the time periods provided in the statute.

Having fully considered appellant’s contentions and having found no error demonstrated, we affirm the order appealed from.

LETTS, C. J., and ANSTEAD, J., concur.


text:
    Everoy Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-238.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The conviction is affirmed; however, we remand the cause with directions to correct the sentencing documents to reflect the appropriate lesser included offense.

.AFFIRMED and REMANDED FOR TECHNICAL CORRECTION.

LETTS, C. J., and HERSEY and DELL, JJ., concur.


text:
    John Peter DIAZ a/k/a John Erwin, Appellant, v. STATE of Florida, Appellee.
    No. 81-317.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant’s conviction and sentence are affirmed but this cause is remanded to the trial court with directions that the provision for the assessment of costs and attorney’s fees contained in the judgment be stricken. See Cox v. State, 334 So.2d 568 (Fla.1976).

DOWNEY, ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Marvin W. SMITH and Julia T. Smith, Appellants, v. Guy C. HILL, Appellee.
    No. 81-329.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Thomas A. Bratten and Larry A. Klein, West Palm Beach, for appellants.

      Earl L. Maxwell, Jr. of Maxwell & Hill, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment in a defamation action. Appellants were found liable in damages to the plaintiff, an attorney, for defamatory remarks contained in a letter written by the husband and typed and mailed by the wife. Damages were assessed at $5,000 compensatory and $35,000 punitive.

Two points are raised on appeal: (1) ex-cessiveness of the punitive damage award; and (2) the impropriety of the closing argument made by plaintiff’s counsel. We find reversible error oh the second point and, therefore, do not address the question of excessiveness of the punitive award.

On his initial closing argument, plaintiff’s counsel did not mention any specific figure to be awarded as punitive damages and suggested compensatory damages of $100 or $125 “plus some money for his mental anguish and anger.” Defense counsel did not refer to damages during his closing argument. On rebuttal, and over objection, plaintiff’s counsel specifically suggested $10,000 compensatory damages, and argued for an amount between $35,000 and $50,000 punitive damages. In Heddendorf v. Joyce, 178 So.2d 126 (Fla. 2d DCA 1965), allowing counsel to advance arguments as to specific amounts for the first time in his final summation, when opposing counsel has no opportunity to rebut, was held to be prejudicial error. In the present case, there was virtually no mention of any specific damages in plaintiff’s opening and nothing whatsoever in defendants’ argument on the subject. Obviously, plaintiff’s rebuttal argument was not truly in rebuttal of anything and was, instead, the raising of a new matter at an improper time. Under the circumstances of this case, the evidence, and the amount awarded, we conclude the error was harmful. We, therefore, reverse and remand for a new trial. The error related solely to damages, both compensatory and punitive, and the new trial shall be limited to damages and the evidence germane thereto.

REVERSED AND REMANDED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


text:
    James C. HARDEMON, Appellant, v. STATE of Florida, Appellee.
    No. 81-433.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Russ v. State, 313 So.2d 758 (Fla.1975).

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


author: HURLEY, Judge.

text:
    Patricia MULLINS, Appellant, v. Charles Albert MULLINS, Appellee.
    No. 81-837.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Frank J. Lynch, Jr., of McCain & Lynch, Fort Pierce, for appellant.
    Rupert Jasen Smith, Fort Pierce, for ap-pellee.
   HURLEY, Judge.

The question posed by this appeal is whether the trial court possessed subject matter jurisdiction to entertain a petition for additional alimony when the petition was filed after the expiration of the initial alimony period. Since the final judgment of dissolution expressly retained jurisdiction to award alimony in the future, we answer in the affirmative.

Appellant (ex-wife) and appellee (ex-husband) were divorced in the Circuit Court in Broward County in 1975. The court awarded periodic rehabilitative alimony for three years to the ex-wife, and expressly reserved jurisdiction to award future alimony after the period of rehabilitative alimony expired. The husband did not appeal those provisions and, thus, they are not at issue today.

Two years after the ex-husband satisfied his obligation to pay rehabilitative alimony, the ex-wife sought periodic permanent alimony based on a change of circumstances brought about by her apparent need of extensive medical treatments. Attempting to invoke the court’s jurisdiction which had been expressly reserved, she filed a motion to modify the final judgment in the Circuit Court for the Nineteenth Judicial Circuit which encompasses St. Lucie County, her present county of residence. The ex-husband does not dispute that the Circuit Court in the Nineteenth Judicial Circuit is the proper court, if any, in which to file such a motion pursuant to Section 61.14, Florida Statutes (1981).

The trial court concluded that it lacked subject matter jurisdiction to entertain the ex-wife’s motion. The court entered a final judgment in which it “decline[d] to take jurisdiction ... in spite of the reservation of jurisdiction over alimony . . . due to the fact that the rehabilitative alimony period ended [before the ex-wife filed her motion, and because] the husband was not in arrears at the time said rehabilitative alimony period ended .... ” The ex-wife appeals the court’s refusal to exercise its jurisdiction.

The law is settled that a trial court can reserve jurisdiction to award future alimony. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); Chayka v. Chayka, 361 So.2d 430, 431 (Fla. 4th DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1979). Furthermore, the Fifth District has recently held that, in a proper case, jurisdiction to award future alimony can be reserved for an indefinite period. Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981). Here, the final judgment of dissolution contained an express reservation of jurisdiction to award alimony in the future. Therefore, the court possessed subject matter jurisdiction and was obligated to consider the merits of the ex-wife’s motion to modify.

This decision and that of our sister court in Moore v. Moore, supra, underscore the critical significance of a reservation or retention of jurisdiction clause. It should be an integral part of the formula to achieve equity between the parties. Thus, it must be tailored to the needs of the case and be drafted with the same precision as other provisions in the final judgment; it should not contain patent ambiguities or be treated as boiler plate. Moreover, if a party wishes to question a reservation of jurisdiction, it must be done at the time of the initial judgment.

We reverse and remand for further proceedings consistent with this opinion.

ANSTEAD and BERANEK, JJ., concur.


text:
    Ralph KENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 81-989.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer; Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. State v. Dickinson, 370 So.2d 762 (Fla.1979); State v. Thomas, 370 So.2d 1142 (Fla.1979).

LETTS, C. J., and HERSEY and DELL, JJ., concur.


author: RYDER, Judge.

text:
    Arthur Lewis HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 81-1048.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.

      Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Arthur Lewis Huff seeks review of the trial court’s judgment wherein he was adjudicated guilty of robbery with a firearm and sentenced to twenty-five years in prison with a three year mandatory term.

His issues on appeal involve the denial of an oral motion to sever his trial from his codefendant’s trial, the failure of the trial court to appoint new counsel for him, and the admission of evidence at trial which was the fruit of an allegedly illegal stop, search and seizure.

We see no merit in the search and seizure issue. Due to our holding later in this opinion, we will not address the question regarding the failure to appoint new counsel, for even though such failure might have been error, we have insufficient record upon which an informed decision can be reached. In any event, it is not dispositive at this point in view of our holding. The remaining issue does, however, require a more thorough discussion.

Appellant and a codefendant were charged by information with robbery with a firearm. Both were originally represented by the public defender’s office. Although a subsequent order appointed private counsel for appellant because of a conflict of interest, appellant was represented by a public defender, Mr. Woodward, at time of trial. The codefendant, instead, was represented by private counsel, Mr. Jones.

When Mr. Jones announced at the close of the state’s case that his client would take the stand and testify, counsel for appellant moved for severance and stated that Mr. Jones had previously represented to him that the codefendant would not take the stand. Additionally, counsel for appellant stated that although he had attempted to talk with the codefendant, the codefendant would not cooperate with him. Appellant’s counsel also stated that any information with which he could impeach the codefend-ant was privileged because the public defender’s office had acquired it while that office still represented both appellant and the codefendant.

The trial judge denied the motion to sever. The codefendant subsequently testified that appellant had forced him to take part in the robbery.

At the close of the codefendant’s testimony, counsel for appellant renewed his motion for severance stating that he did not believe that the codefendant was telling the truth and that his belief came from prior conversations with the codefendant while acting as his counsel. The trial judge denied the motion as being untimely. Appellant’s counsel further buttressed his motion by observing that there had been no reason to request a severance prior to trial as the codefendant had maintained all along he would not testify and, thus, counsel was unaware of the change of mind until it was announced after trial had commenced.

The facts of this case are remarkably similar to the facts in the recent Florida Supreme Court case of Crum v. State, 398 So.2d 810 (Fla.1981). There, the defendant and his brother were charged with first degree murder. Although the public defender was originally appointed to represent both the defendant and his brother, the public defender subsequently withdrew as counsel for the defendant on the basis that the multiple representation led to a conflict of interest. A private attorney was appointed for the defendant. Prior to trial, the public defender, then only representing the brother, made a motion for severance which was denied.

After the jury was sworn at the joint trial, private counsel for the defendant moved for severance. He stated that he had only learned that morning that the brother would accuse the defendant of singularly committing the murder. The state attorney objected to the motion as untimely made and alleged that the defendant should have known when the public defender withdrew from his case that a conflict of interest was present. The state attorney argued specifically that the failure to raise the severance in a pretrial motion to sever waived the right to severance at trial. The court denied the motion to sever.

In holding that the trial court abused its discretion in denying the motion to sever, the Florida Supreme Court observed that the object of fairly determining defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency and convenience. The supreme court held that the motion was not untimely because the defendant had first learned that his brother would testify against him only after the trial had commenced.

In this appeal, the state urges the same arguments that the court rejected in Crum, namely that the failure to raise severance in a pretrial motion waived the right to severance at trial and that the motion at trial was untimely because appellant should have known when the public defender withdrew from his case that a conflict existed. As in Crum, it was only after trial had commenced that counsel for appellant learned that the codefendant would testify and that his testimony would accuse appellant of singularly committing the crime.

We believe that the decision in Crum mandates a reversal in this case as well as an order for a new trial.

REVERSED and REMANDED with instructions to set aside the judgment and sentence herein and to grant a new trial.

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


text:
    Susan M. BRUNER, Petitioner, v. BOARD OF REAL ESTATE and Department of Professional Regulation, Respondent.
    No. 81-839.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      Kenneth M. Meer, of Law Offices of Thomas V. Infantino, Winter Park, for petitioner.
    Salvatore A. Carpino, of Dept, of Professional Regulation, Tallahassee, for respondent.
   ON MOTION FOR REHEARING AND CLARIFICATION

SHARP, Judge.

Petitioner, Susan Bruner, seeks a rehearing and/or clarification of our order denying her petition for a writ of prohibition in light of our recent holding in Pilcher v. Peeples, 402 So.2d 1290 (Fla. 5th DCA 1981). She sought a writ of prohibition from this court to prevent the Department of Professional Regulation from proceeding to revoke or suspend her real estate broker’s license. The Board of Real Estate found probable cause to commence formal action against the license of petitioner Bruner and the Department of Professional Regulation concurred in that finding.

We deny the motion for rehearing but we grant the motion for clarification because the facts in this case are virtually indistinguishable from Pilcher, where we issued a writ of prohibition. In Pilcher we construed section 120.60(6), Florida Statutes (1979), as entitling the licensee to an informal conference at which the licensee would be afforded the opportunity to demonstrate compliance with licensing requirements and we held that the informal conference must be held before the Board embarks on a determination of probable cause.

However, as respondent pointed out in this case, section 120.60(6) was changed effective July 1, 1981. Pursuant to that change, a licensee is entitled to a hearing sometime prior to the entry of a final agency order, but the requirement for the informal conference was dropped. We deemed the statutory change procedural in nature and concluded it applied retroactively to this case. While we agree that the right to a hearing before a final administrative order is rendered is clearly substantive, we believe the timing of when and before whom that hearing must occur is procedural. We therefore denied the writ for prohibition.

The recent change in section 120.60(6) was not considered by the court in Pilcher and therefore it is not in conflict with this case.

MOTION FOR REHEARING DENIED; MOTION FOR CLARIFICATION GRANTED.

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

      . Ch. 81-180, Laws of Fla.

      . See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 243 (Fla.1977); Johnson v. State, 371 So.2d 556 (Fla.2d DCA 1979); cf. Turner v. State, 410 F.2d 837 (5th Cir. 1969) (no vested right in a form of administrative procedure).


author: DOWNEY, Judge. LETTS, Chief Judge,

text:
    Faye Y. HURLEY and Raymond S. Hurley, Appellants, v. Donald J. CONKLIN, et ux. Carriage Hill Limited Partnership, etc., et al., Appellees.
    No. 79-15.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 1982.
    Jerry Oxner of Oxner, D’Angio & Brown, West Palm Beach, for appellants.
    Robert S. Levy of Law Offices of Robert S. Levy, P. A., West Palm Beach, for ap-pellee Charles P. Houston, court appointed Receiver of Carriage Hill Ltd. Partnership; and Arthur C. Koski of Koski, Mateer & Gillespie, Boca Raton, for appellees, Conklin, Dickinson, Titus, Lunsford, Florida Vantage Properties, Inc., and Fargo Long Corp.
   DOWNEY, Judge.

Appellants, Faye Y. Hurley and Raymond S. Hurley, seek review of a final judgment which found them ultimately liable for damages for breach of implied warranty arising out of the sale of subdivision lots that had been improved with a seawall. Carriage Hill Limited Partnership filed a “cross-appeal,” which in reality is a joinder in appeal, seeking review of the same final judgment which found Carriage Hill immediately liable for breach of implied warranty.

The record reflects that appellee Carriage Hill Limited Partnership was the developer of a subdivision in Boca Raton, Florida. During the course of development, in July 1972, Carriage Hill employed P and H Seawall & Piling Co. to construct 7100 lineal feet of seawall abutting the lots in question in this case. In January 1974 the seawall collapsed during a period of heavy rainfall.

In 1971 and 1972 Carriage Hill entered into contracts for the sale of the lots involved in this suit. All of those contracts, except one, were assigned to third parties so that only one ultimate purchaser who received a deed to the property was the original contract purchaser. When the contracts from Carriage Hill were assigned, the assignee also entered into a new contract with the assignor. However, when the sale was closed a deed was delivered by Carriage Hill to the ultimate assignee and legal title passed from the former to the latter without intervening transfers. The consequence is that plaintiff-appellees were in privity with Carriage Hill and had standing to enforce any implied warranty evolving out of the contracts and sales.

After the seawall collapsed, the five ap-pellees who had taken title to lots filed actions against Carriage Hill for breach of an implied warranty of fitness. In turn, Carriage Hill brought in Mr. and Mrs. Hurley as third party defendants in a claim for indemnity for any damages Carriage Hill might have to pay as a result of the actions against it. In an extensive, well considered judgment, the trial court found that there was an implied warranty of fitness, which had been breached, and that the warranty extended to appellees. The court further found that Carriage Hill was entitled to be indemnified by appellants because of the manner in which appellant Raymond Hurley operated P & H Seawall & Piling Company.

Although there are numerous questions presented by this appeal, the main ones involve the validity of the trial judge’s findings that there was an implied warranty involved in the sale of the property in question and that it extended to the appellee-vendees in this ease.

By way of background, we note that at common law the doctrine of caveat emptor applied to the sale of both real and personal property. Eventually that doctrine was abandoned with regard to the sale of chattels, but it has retained its vitality generally with regard to the sale of realty. Some inroads, however, have been made in the area of real property by the application of covenants of implied warranty to the sale of new residences.

The seminal case in Florida applying implied warranties to the sale of new residential real estate is Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), affirmed 264 So.2d 418 (Fla.1972). The Gable case noted that the general rule still pertaining in a majority of jurisdictions is that implied warranties do not apply to the sale of realty. However, recognizing that the rule was fast being eroded in the area of new residential construction, the court held the “modern rule” to be that implied warranties do extend to the sale of residences. The rationale of the modern view seems to be that caveat emptor should no longer be applied to the sale of new residential realty because that doctrine does not satisfy the demands of justice in such cases. The reasons are set forth in Cook v. Salishan Properties, Inc., 279 Or. 333, 569 P.2d 1033, 1034-1035 (1977), as follows:

In Yepsen [v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974) ] we noted and followed a trend in other jurisdictions toward the recognition of an implied warranty in the sale of new houses, and summarized the justifications for that recognition as follows:
‘ * * * These cases, reflecting a change in the morals of the market place, more specifically rest their holdings on the ground that the underlying theory of caveat emptor, predicating an arm’s length transaction between seller and buyer of comparable skill and experience, is unrealistic as applied to the sale of new houses. The courts of this persuasion recognize that the essence of the transaction is an implicit engagement upon the part of the seller to transfer a house suitable for habitation. It is also recognized that the purchaser is not in an equal bargaining position with the builder-seller of a new house and is forced to rely upon the latter’s skill and knowledge with respect to the ingredients of an adequately constructed dwelling house. It is further explained that, although a house becomes a part of the realty according to the technical law of accession, the purchaser sees the transaction primarily as the purchase of a house with the land only as an incident thereto. Looked at in this light, there is no substantial difference between the sale of a house and the sale of goods and it follows, therefore, that the implied warranties of fitness for use attendant upon a sale of personal property should attach to a sale of a house.’ 269 Or. at 639-40, 525 P.2d at 1022.
These justifications, which we found persuasive in the aggregate in Yepsen, are of two types: a recognition of consumer expectation on the one hand and, on the other, an acknowledgment that buyers of houses, like buyers of other goods, must of necessity rely on the expertise of the builder or manufacturer.

Gable concluded by limiting its purview in stating: “we also realize and memorialize that our facts limit our decisions to the sale of new homes or condominiums.”

Subsequent decisions have failed to extend the modern view of Gable beyond its clear parameters. In Burger v. Hector, 278 So.2d 636 (Fla. 1st DCA 1973), the court refused to extend implied warranties to the builder of a pew house because the water damage to the house was caused not by the builder’s defective workmanship, but by the subsoil condition on the lot purchased separately by the owner.

In Schmitt v. Long, 290 So.2d 139 (Fla. 4th DCA 1974), the purchaser of an unimproved lot, which had been filled by the seller, sued the seller when it was learned the lot could not be improved without being demucked. This court refused to apply the holding in Gable, supra, because the latter case did not involve the sale of unimproved land.

Most recently, this court refused to extend the doctrine of implied warranties to a tenant of a mobile home. Solomon v. Gentry, 388 So.2d 52 (Fla. 4th DCA 1980).

Adverting once again to the case at hand, the real question is whether the rationale which gave rise to the extension of implied warranties to new homes perforce applies to the sale of residential lots on which a seawall has been constructed. There are jurisdictions which have extended implied warranties to improvements outside of but in support of the house, such as wells supplying water to the house. Krol v. York Terrace Building, Inc., 35 Md.App. 321, 370 A.2d 589 (1977); Lyon v. Ward, 28 N.C.App. 446, 221 S.E.2d 727 (1976); Jeanguneat v. Jackie Hames Const. Co., 576 P.2d 761 (Okl.1978). Other courts have extended such warranties to septic tanks and drain fields. Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978); Tavares v. Horstman, 542 P.2d 1275 (Wyo.1975); Rutledge v. Dodenhoff, 254 S.C. 407, 175 S.E.2d 792 (1970). The principle involved in these cases seems to be that, although the defects do not appear in the house structure, the builder is responsible for them and they were placed on the lot in conjunction with and to support the house. Yepsen v. Burgess, 269 Or. 635, 525 P.2d 1019 (1974).

After reviewing numerous authorities the trial judge found that Carriage Hill should be held to have impliedly warranted the fitness of the seawall in question here. In so ruling the judgment stated:

Unquestionably, if defects of this severity existed within the walls of a structure above the ground, be it a home or a commercial building, there would be little discussion as to the existence of implied warranties. Though the Court is concerned lest there be an undue extension of a limited concept, it cannot reasonably differentiate between the potential uses of the structure (residence, commercial building or seawall) nor attach critical importance to its location (i.e., whether it abuts or rests atop the land.). If, however, a later court should determine that implied warranty protection must be limited to homes, then, as indicated by the ‘well and septic tank cases’ cited above, the focus is not limited to the residence alone, but extends to those other products of the builder’s work upon the land which are reasonably related to the building of the home. Given the size and locations of lots in this case, one could certainly find that the seawalls were necessary and essential elements for the building of homes. Thus, on either of these parallel theories, viz., that they are structures abutting the land or that they are products of the builder which are reasonably related to the building of a home, the Court concludes that the seawalls are covered by an implied warranty of fitness, which in this instance, was breached by the builder-developer.

This is an interesting analysis of the case and it has a certain logical punch to it. However, we are not persuaded that this court should adopt those arguments for the following reasons: First, the suggestion that an implied warranty of fitness applies to commercial construction has never been followed in this state. Secondly, the suggestion that this seawall is a part of, or in support of, the house improvement as are water wells and septic tanks we feel is a strained extension of the rationale which gave rise to the extension of the doctrine of implied warranty to residential construction. Thirdly, and most importantly, we opt not to follow the lead suggested by the trial court and extend the doctrine of implied warranty indiscriminately to improvements to real property, because it is too radical a departure from the general rule in this country and the jurisprudence of this state. A drastic change in course such as suggested is more appropriate coming from the highest court in the state. Accordingly, we certify to the Supreme Court of Florida the following question as one of great public importance:

Do implied warranties of fitness and merchantability extend to first purchasers of residential real estate for improvements to the land other than construction of a home and other improvements immediately supporting the residence thereon, such as water wells and septic tanks?

Our opinion is not intended to foreclose amendment of the pleadings to allege a cause of action based upon negligent performance of a contract. See, e.g., Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981.)

For the foregoing reasons we hold the deed holders cannot maintain this suit for breach of implied warranty against Carriage Hill and thus Carriage Hill has no claim over for indemnification from the Hurleys. We, therefore, reverse that portion of the final judgment appealed from in which judgment was entered for damages in favor of Dickinson, Florida Vantage Properties, Lunsford, Conklin, Titus, Fargo Long Corp., and against Carriage Hill Limited Partnership. The award of judgment to Carriage Hill Limited Partnership for $24,687.80 against appellants is also reversed.

HERSEY, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting:

This case has been confusing to me. My main concern is that while the majority opinion repeatedly points out that it is only dealing with the sale of waterfront lots as distinct from waterfront homes on those lots, there is, intertwined, discussion about residential real estate and wells and septic tanks which to me does not clearly isolate the issues. In this regard I think the trial judge was also confused.

As I see it, if the sales are for lots only, the certified question should place seawalls, wells and septic tanks in exactly the same category, whereas the opinion and the question might appear to differentiate them.

Likewise, if the contracts had been for the sale of waterfront homes on waterfront lots, then I would again place a seawall in exactly the same category as a septic tank or a well. I feel strongly that where the sale of a waterfront home is involved, if the waterfront home is created and built by the developer along with the creation and building of a man-made waterfront, a seawall is as necessary and as integral a part of the actual house building as is a sewer connection and a water supply. Accordingly, if the implied warranty of fitness applies at all, it ought to apply to all three.

      . 49 Fla.Supp. 74, 78-79 (Fla. 15th Cir. Ct. 1978).

      . The contract prices here included not only the lots but also: “sewer, water, streets, underground electric and seawall.”


text:
    Hiram David JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. XX-322.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Johnson appeals the trial court’s order denying his motion for discharge for violation of the speedy trial rule. We reverse.

On September 19, 1979, Johnson, a former manager of an Eagle Discount Store, was called by Officer Meeks concerning a missing bank deposit from the Eagle Discount Store. Meeks told Johnson if he did not come in for questioning an arrest warrant would be issued. Johnson went to the police station, was advised of his Miranda rights, and questioned. Meeks told Johnson they would be there all night until the matter was resolved. Johnson subsequently confessed.

After the confession, Meeks called an assistant state attorney who recommended Johnson be put in the pretrial intervention program pursuant to Section 944.025, Florida Statutes (1979). Johnson was informed to get an attorney and get in touch with the state attorney’s office the next week. He was then allowed to leave the police station. Although Johnson was not fingerprinted or put in a cell, the police records indicated that his case was “cleared by arrest.”

Johnson never entered the pretrial intervention program; therefore, charges were filed against him on February 8, 1980. On June 11, 1980, Johnson filed his motion for discharge since more than 180 days had passed since his initial detention on September 19, 1979. The trial court held that there was no question that appellant was in custody on September 19, 1981, but it denied the motion for discharge since Johnson was not fingerprinted and was allowed to leave without being formally arrested.

Florida Rule of Criminal Procedure 3.191 states that the speedy trial time commences when a defendant is “taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” In this case, we hold that Johnson was taken into custody for speedy trial purposes when he was questioned at the police station. He appeared at the police station for questioning after being told that an arrest warrant would be issued if he did not show up. Use of formal words of arrest are not essential to start the speedy trial clock running. See State v. N. B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. den. 383 So.2d 1199 (Fla.1980). Johnson was sufficiently subject to Officer Meeks’ authority and directions to commence the speedy trial period. Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976); Wiggins v. State, 384 So.2d 43 (Fla. 1st DCA 1980). The officer’s authority was exercised over Johnson when he was told to report to the police station for questioning or be subject to arrest and when Johnson was told to report to the pretrial intervention program.

Additionally we note that the pretrial intervention program is available only to those first offenders charged with a misdemeanor or third degree felony. Section 944.025(2), Florida Statutes (1979). It is therefore obvious that Johnson had to be taken into custody and charged prior to his referral to the pretrial intervention program. The State was therefore subject to the 180-day rule which commenced September 19, 1979.

Accordingly, the trial court’s order is reversed and the defendant is discharged.

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


author: THOMPSON, Judge. ERVIN, Judge,

text:
    LAKE COUNTY COMMISSIONERS and U. S. Fidelity & Guaranty Company, Appellants, v. Kenneth C. WALBURN, Appellee.
    No. AB-362.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.

      John R. Gierach of Gierach & Ewald, Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier appeal contending that the deputy commissioner (deputy) erred in awarding claimant temporary total disability (TTD) benefits from February 8, 1980 to March 26, 1980, in awarding wage loss benefits from July 23, 1980 to October 1,1980, in directing the employer/carrier to provide claimant with further medical treatment by a different physician, and in awarding reimbursement of taxable costs. We agree and reverse in each of these respects.

The claimant suffered a compensable injury on November 16, 1979. He was conservatively treated by Dr. Carducci, an orthopedic physician, and continued to work for his employer until he was discharged on February 8, 1980. Although the claimant made no work search and testified that he was unable to work from the date of his discharge until March 26,1980, Dr. Carducci testified the claimant was able to work with some limitations during this time period. The claimant was admitted to the hospital for surgery on March 26,1980 and was paid workers’ compensation benefits from that date until July 23,1980. Dr. Carducci testified that claimant reached his maximum medical improvement (MMI) on July 23, 1980 and could return to work with no limitations. After a hearing, an order was entered February 23, 1981 finding that claimant reached MMI July 23, 1980 and awarding him TTD benefits and wage loss benefits. The order also allowed a change of physicians and reserved jurisdiction to determine costs.

TTD is the healing period during which the claimant is disabled and unable to work due to his injury. Where there is no medical evidence that a claimant is unable to work, he must make an adequate work search or a conscientious effort to return to work in order to establish entitlement to TTD. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). “When a claimant’s job is no longer available, and there is no medical evidence that he is unable to work, the claimant is first required to seek work in order to establish TTD.” LeHigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). The claimant made no work search and the medical testimony indicated that claimant was able to work. The claimant’s testimony that he was unable to work is insufficient to establish his entitlement to TTD. Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981). Therefore the award of TTD benefits from February 8, 1980 to March 26, 1980 is reversed.

Although he reached MMI on July 23, 1980, and was told that he could return to work without limitations as of that date, the claimant sought wage loss benefits based on a complete loss of earnings from July 23, 1980 to October 1, 1980. Section 440.15(3)(b)2, Fla.Stat. (1979) provides that if an employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the wages the employee is able to earn after the date of MMI shall be deemed to be the amount which he would have earned had he accepted appropriate employment or not limited his income. This section also places the burden on the employee to establish that any wage loss benefit claimed is a result of the com-pensable injury. As claimant is qualified by training and experience for a number of jobs, including surveying, accounting and construction, the evidence is totally insufficient to prove that his work search was unsuccessful due to his disability (rather than because work was unavailable) and that he was entitled to wage loss benefits. Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981); Lehigh, supra, at 1204. Again, the testimony of the claimant that he was unable to perform these jobs is not sufficient in view of the medical testimony that he was able to work without limitation.

More than six months after the claimant reached MMI, the deputy ordered the employer/carrier to furnish the claimant further medical treatment by a different physician. MMI is the date after which recovery or lasting improvement can no longer reasonably be anticipated and it was error for the deputy to direct further remedial treatment by a different physician in February of 1981 after he found in his order that the claimant had reached MMI on July 23, 1980. “Concurrent findings of maximum medical improvement and the necessity of continuing medical care are erroneous as a matter of Law.” Giffen Industries of Orlando v. Campbell, 8 FCR 157, 158 (1973).

In view of our reversal of the award of all of the benefits to the claimant, the deputy’s reservation of jurisdiction to determine costs is also reversed.

REVERSED.

BOOTH, J., concurs.

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

ERVIN, Judge,

dissenting and concurring.

Although I agree with the majority in reversing that portion of the order relating to the award of temporary total disability benefits, I respectfully disagree as to the reversal of the remainder.

In my judgment, the record supports the deputy commissioner’s award of wage loss benefits from July 23, 1980 to October 1, 1980. The evidence before the deputy commissioner reflects that during the above period, the appellee conducted a work search by inquiring an average of two or three times a week with the State Employment Office whether any employment was available, by contacting the Department of Vocational Rehabilitation, by contacting his former employer, as well as several contractors concerning possible work. He was unable, however, to test the limits of his capacity to work because no work was in fact acquirable. The requirement this court has imposed upon an employee, i.e., that he prove his work search was unsuccessful due to his disability, rather than unavailability of work, Lehigh Corp. v. Byrd, 397 So.2d 1202, 1204 (Fla. 1st DCA 1981); Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981), is, in my judgment, outside the mainstream of the law on the subject, see, e.g., Diamond M. Drilling Co. v. Marshall, 577 F.2d 1003 (5th Cir. 1978); Hughes v. Industrial Comm’n., 3 Ariz.App. 51, 411 P.2d 474 (1966); Insurance Company of North America v. Nix, 141 Ga.App. 342, 233 S.E.2d 468 (1977); Blackmon v. Pantex Manufacturing Corporation, 95 R.I. 389, 187 A.2d 541 (1963). And see particularly Fellows, Reed & Weber v. Lance, 406 So.2d 1286 (Fla. 1st DCA 1981).

The majority’s interpretation of Section 440.15(3)(b)2, forcing a claimant to prove that his work search was unsuccessful due to his disability, rather than because of unavailability of work could place a well-nigh impossible burden on an injured claimant. Suppose, for example, the employee seeks employment with 30 or more potential employers, but is told that because of recessionary conditions, there is no work available. As Professor Larson points out, if a claimant’s inability to obtain work is traceable directly to a compensable injury, the causation requirement of the wage loss by work-connected injury is satisfied, and it is immaterial “that the wage loss comes about through refusal or unavailability of employment .. .. ” 2 Larson, The Law of Workmen’s Compensation, § 57.61 at 10-164.90. Restated, the requisite causal relationship is established if the compensable injury breaks or alters the claimant’s pattern of employment. See Guzman v. Surge Electric, Inc., 381 So.2d 287 (Fla. 1st DCA 1980). Additionally, a worker may be compensated for the aggravation of an injury because of economic factors. United States Sugar Corporation v. Hayes, 407 So.2d 1079 (Fla. 1st DCA, 1982).

In the instant case, the deputy commissioner heard claimant’s testimony concerning his fruitless attempts to find work. Whether or not claimant explored the entire spectrum of employment opportunities which he may conceivably have been suited for is, in my view, a discretionary call by the trier of fact that I would leave undisturbed. As we stated in Pearson v. City of Miami Beach, 399 So.2d 1135, 1136 (Fla. 1st DCA 1981): “The credibility and sufficiency of . .. evidence to establish a good faith work search on the part of appellant remains a factual matter to be determined by the deputy commissioner . . . . ”

I differ also with the reversal of the order directing the employer/carrier to provide the claimant with further medical treatment by a different physician. I am aware of no law holding that a deputy commissioner must appoint a physician recommended by the employer/carrier over one sought by the claimant. As a matter of fact, Section 440.13(2), Florida Statutes (1979), authorizes a deputy commissioner at any time, for good cause shown in the deputy’s discretion, to order a change in remedial attention, care, or attendance. In my judgment, appellant has not demonstrated an abuse of discretion. I would therefore affirm this portion of the order, as well as the award of taxable costs to claimant.


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

text:
    GENUINE PARTS COMPANY and Sentry Indemnity Company, Appellants, v. Roger MORRIS and Division of Workers’ Compensation, Appellees.
    No. AB-479.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    John F. McMath, Miami, for appellants.
    Ronnie Klein Witlin, Miami, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

The deputy’s order is regrettably vague in finding the date or dates of maximum medical improvement, in fixing the onset of permanent disability benefits, and in explicating those findings in terms of the record evidence. Nevertheless there is a reasonable basis in the record for the deputy’s apparent determination that claimant reached MMI on December 5,1980, and that permanent disability benefits were payable from that date. Since the deficiencies in the order might have been alleviated by counsels’ prompt application to the deputy, had counsel shared our uncertainty, and there is no other error in the order, we will not sacrifice the benefits due nor prolong these proceedings by reversal or remand, but rather we amend the order to find MMI on December 5,1980, and to provide permanent disability benefits from that date. As amended the order is AFFIRMED.

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


text:
    FLORIDA ROCK INDUSTRIES, INC., and its servicing agent, Underwriters Adjusting Company, Appellants, v. Larry DAMPIER, Appellee.
    No. AC-165.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P. A., Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

The deputy’s order is modified to limit the award of temporary total disability benefits for claimant to the period of that disability. The award as modified is AFFIRMED.

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


author: WIGGINTON, Judge.

text:
    William M. DEAN, Gary W. Dean and Jerry Daniel Dean, Appellants, v. Willie Hazel Dean HEIMBACH, Appellee.
    No. AC-320.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.

      Paul G. Komarek, Panama City, for appellants.
    Thayer M. Marts of Watkins, Hill & Marts, Tallahassee, and Herman D. Lara-more, Marianna, for appellee.
   WIGGINTON, Judge.

William Dean and his sons appeal from a final judgment that set aside two conveyances of their Jackson County home and reverted ownership to the senior Dean, subjecting the property to attachment by Dean’s personal judgment creditor. Because the property was Dean’s homestead and therefore exempt from attachment, we must reverse.

The trial judge found that no valid homestead existed at the time Dean conveyed the property because he had abandoned it. The record shows that Dean was divorced but owned the home and occupied it with his 16-year-old son whom Dean supported. Shortly before Dean conveyed the property, he was hospitalized and then arrested on criminal charges and as a condition of bail he was required to temporarily remove himself from Jackson County. During his brief stay in Gulf County, Dean conveyed the home to his oldest son Gary, who, with his wife, moved into the home and continued the care of Jerry. Dean’s unrefuted testimony established that he intended to return to the property after his criminal problems were resolved. Such an involuntary absence cannot, by itself, support a finding of abandonment of the homestead. See Stokes v. Whidden, 97 Fla. 1057, 122 So. 566 (1929). To preserve a homestead, the family head is not required to remain on the property, so long as his absence is temporary and he intends to return. See e.g., Read v. Leitner, 80 Fla. 574, 86 So. 425 (1920). The homestead will also be preserved when the family unit is temporarily removed from the homestead but the homestead remains the permanent abode to which the family unit intends to return. See Beensen v. Burgess, 218 So.2d 517 (Fla. 4th DCA 1969).

Therefore, we must reverse the finding of abandonment, and in so doing we must also reverse the final judgment and dismiss the suit, despite the judge’s conclusion — otherwise amply supported by the evidence — that Dean had fraudulently conveyed the property to protect it from execution by his judgment creditor. In addressing this issue the supreme court has succinctly stated: “This Court is committed to the doctrine that the transfer of homestead property is not a fraud on creditors.” Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832, 833 (1946). Dean could not legally defraud a creditor by transferring homestead assets, because those assets were beyond the creditor’s reach. See article X, sec. 4, Florida Constitution.

A judgment creditor therefore acquires no rights in homestead property and the judgment debtor can only commit fraud on his judgment creditors by disposing of such property as the creditor would have a legal right to look to for satisfaction of his claim. Sneed v. Davis, 135 Fla. 271, 184 So. 865 (1938). The court in Sneed stated:

[A] sale, gift or other disposition of property which is by law absolutely exempt from the payment of the owner’s debts cannot be impeached by creditors as in fraud of their rights. Creditors have no right to complain of dealings with property which the law does not allow them to apply on their claims, even though such dealings are with a purpose to hinder, delay or defraud them. At 868.

In the instant case, Dean’s property is exempt as a homestead thus he could transfer title without committing a fraud upon his judgment creditor whether or not he harbored ill motives. Dean’s property was unavailable for satisfying the judgment creditor’s claim before and at the time of the conveyance and thus equally unavailable following the transaction. See Volpitta v. Fields, 369 So.2d 367 (Fla. 4th DCA 1979); cert. denied, 379 So.2d 204 (Fla.1979). See also Nationwide Financial Corp. of Colorado v. Thompson, et al., 400 So.2d 559 (Fla. 1st DCA 1981) and authorities cited therein.

Accordingly, judgment is REVERSED and this cause is DISMISSED.

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


text:
    AMF POWERBOAT DIVISION and Insurance Company of North America, Appellants, v. Gayle GILCHRIST, Appellee.
    No. AC-356.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.

      Thomas A. Moore, of Pitts, Eubanks & Ross, P. A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WIGGINTON, Judge.

Employer/carrier appeal from an order of the deputy commissioner awarding claimant temporary total disability benefits, medical treatment and expenses. The compensability of the injury is not at issue. Rather the issue is whether the deputy erred as a matter of law in his finding of a “similar employee,” pursuant to § ,440.14(l)(b), Florida Statutes (1979), in determining claimant’s average weekly wage. Upon reviewing the record, we answer that question in the affirmative.

The record indicates that at the time of the industrial injury, claimant had been employed as a laminator with employer, AMF Powerboat Division, for slightly more than one month. However, during that time, claimant had worked only a total of nineteen days. The record also indicates that claimant was receiving $4.43 per hour and was considered a full-time employee with a forty-hour work week.

In making its determination of claimant’s average weekly wage on which to base an appropriate compensation rate, the deputy commissioner invoked § 440.14(l)(b) which states:

If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination [of average weekly wage].

After reviewing the submitted wage statements, the deputy chose as a “similar employee” one H. Cullen, also a laminator. However, the record indicates that Ms. Cullen was receiving an hourly wage of $6.05. Indeed, it appears from the wage statements that Ms. Cullen was the second-highest paid laminator for the company at the time of claimant’s industrial accident, there being no similar employee with a wage rate as low as that of claimant.

Accordingly, we hold that the deputy commissioner’s determination of claimant’s average weekly wage based on the wages of a “similar employee” is not based on competent substantial evidence. However, an investigation of the record indicates that there is no “similar employee” on which reasonably or fairly to base a determination of claimant’s average weekly wage. Consequently, it becomes necessary to apply § 440.14(l)(d) which provides in pertinent part:

If any of the foregoing methods cannot reasonably and fairly be applied the full-time weekly wages of the injured employee shall be used ...

The order of the deputy commissioner is therefore reversed, and the case is remanded with instructions to recalculate claimant’s average weekly wage by using her hourly pay rate based on a forty-hour work week.

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