author: McCORD, Judge.

text:
    Patricia M. LEAPLEY, Appellant, v. BOARD OF REGENTS, FLORIDA STATE UNIVERSITY SYSTEM, and the Public Employees Relations Commission, Appellees.
    No. AK-278.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Rehearing Denied Jan. 4, 1983.
    John J. Chamblee, Jr., of Chamblee & Miles, Tampa, for appellant.
    Gregg A. Gleason, Associate Gen. Counsel, Bd. of Regents, Tallahassee, for appel-lees.
   McCORD, Judge.

Patricia M. Leapley appeals from an order of the Public Employees Relations Commission (PERC) dismissing her unfair labor practice charges against the Board of Regents, Florida State University Systems (BOR). We reverse.

On May 14, 1980, Leapley was informed that her employment contract as Operational Program Coordinator for the Diabetes Center at the University of South Florida School of Medicine would not be renewed when it expired on June 30, 1980. When she sought to pursue her grievance through the collective bargaining agreement between BOR and the United Faculty of Florida (UFF), she was advised she could not use that procedure because she was not deemed a member of the UFF bargaining unit. She was also advised that it was too late to file a grievance under the State University Grievance Procedure. In the administrative hearing before the hearing officer Leapley contended that her position was within the UFF’s bargaining unit by virtue of United Faculty of Florida v. Board of Regents, 2 FPER 50 (1956). BOR, on the other hand, argued that her position had been extracted from that bargaining unit by a subsequent order, University of South Florida College of Medicine Faculty Association, Inc. and Florida Board of Regents and United Faculty of Florida, 4 FPER 4244 (1978). The hearing officer concluded that she was within the UFF’s bargaining unit; however, PERC disagreed, finding that a subsequent order excluded her from that unit.

The issue of whether Leapley is a member of one bargaining unit or another is essentially a factual determination based upon the circumstances of the case. See also Duval County School Board v. Florida Public Employees, 353 So.2d 1244 (Fla. 1st DCA 1978). Thus, the determinative question is whether there is competent substantial evidence to support the hearing officer’s conclusion that she was, in fact, a member of the UFF-BOR bargaining unit. § 120.57(l)(b)9, Fla.Stat. Clearly, PERC’s conclusions are in irreconcilable conflict with the hearing officer’s ultimate finding that Leapley is within the ambit of the UFF-BOR bargaining unit.

While the hearing officer chose not to mask his ultimate finding as wholly a finding of fact and instead referred to it as “analysis,” we believe that the essentially factual conclusion of that analysis should control. In McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977), this Court said that the hearing officer’s finding on an issue should control to the extent that issue was “simply the weight or credibility of testimony by witnesses,” or was determinable “by ordinary methods of proof,” or was in a factual realm concerning which “the agency may not rightfully claim special insight.” On the other hand, where the “ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility,” this Court will stand by the agency’s substituted finding. Id.; School Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981). We conclude that this issue of whether Leapley was a member of the UFF bargaining unit relates simply to the weight and credibility of testimony, was determinable by ordinary methods of proof, and was in a factual realm concerning which PERC may not rightfully claim special insight. Compare City of Umatilla v. Public Employees Relation Commission, 422 So.2d 905 (Fla. 5th DCA 1982) with Utilities, Inc. v. Florida Public Service Comm., 420 So.2d 331, (Fla. 1st DCA 1982). As such, PERC had no power to reject or modify the hearing officer’s findings of fact unless it first determined that the findings were not based on competent, substantial evidence or that the proceedings in which the findings were based did not comply with the essential requirements of law. § 120.57(l)(b)9, Fla.Stat. Further, PERC may not avoid that responsibility by merely labeling contrary findings “conclusions of law.” School Board of Leon County v. Hargis, supra. Here, the evidence and inferences to be derived therefrom was simply conflicting, some tending to support BOR’s position, the overwhelming weight tending to support Leapley’s position. Accordingly, since our review of the record indicates that the hearing officer’s conclusions are supported by competent, substantial evidence, we reverse PERC’s order and remand with directions that the hearing officer’s order and recommendation be adopted in toto.

BOOTH and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    SYSTEM DEVELOPMENT CORPORATION, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee, and EDS Federal Corporation, Intervenor.
    No. AO-356.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1982.
    Bernard Fried, Santa Monica, Cal., and F. Alan Cummings and John Radey, of Holland & Knight, Tallahassee, for appellant.
    Robert A. Weiss, Medicaid Staff Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, and M. Stephen Turner, of Cul-pepper, Beatty & Turner, Tallahassee, for appellee.
    Richard E. Benton and David L. Cook, of Young, van Assenderp, Varnadoe & Benton, P.A., Tallahassee, and Claude Chappelear, EDS Federal Corporation, Dallas, Tex., for intervenor.
   WIGGINTON, Judge.

The System Development Corporation (SDC) appeals the final order of the Department of Health and Rehabilitative Services (HRS) substantially adopting the recommended order of the hearing officer and awarding the contract to administer the Florida Medicaid Management Information System (FMMIS) to appellee EDS Federal Corporation. The hearing officer concluded, inter alia, that the EDS offer was responsive to the HRS Request for Proposals (RFP) and nothing had occurred to give EDS any unfair competitive advantage over other offerors. We affirm.

Pertinent to this appeal is an understanding of the nature of the RFP procedure. The statutory provision governing the procurement of contractual services in this instance is Section 287.057(3), Florida Statutes (1981), as amended by Chapter 82-196, Laws of Florida. Under that provision, where, as here, an agency determines that the use of competitive sealed bidding, i.e., an Invitation for Bids (IFB), is not practicable and it is incapable of specifically defining the scope of the work required, contractual services shall be procured by an RFP. Section 287.057(3), as amended, states:

A request for proposals which includes a statement of the services sought and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued. . . To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. Said offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals. The award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state taking into consideration price and the other criteria set forth in the request for proposals...

Implicit in the definition of an RFP is the underlying rationale that, in some types of competitive procurement, the agency may desire an ultimate goal but cannot specifically tell the offerors how to perform toward achieving that goal; thus, a ready distinction arises between an RFP and an IFB. Typically, an IFB is rigid and identifies the solution to the problem. By definition, the invitation specifically defines the scope of the work required by soliciting bids responsive to the detailed plans and specifications set forth. Section 287.057(l)(a) and (2), as amended. On the contrary, an RFP is flexible, identifies the problem, and requests a solution. Consideration of a response to an IFB is controlled by cost, that is, the lowest and best bid, whereas consideration of an offer to an RFP is controlled by technical excellence as well as cost.

Nothing in the instant RFP precluded an offeror from proposing or suggesting innovations or improvements to the FMMIS. We see from the record that companies making competitive proposals in the field of systems procurement regularly suggest technologically innovative approaches. Moreover, the RFP process contemplates that offerors will address the problem with creativity and will utilize advanced state-of-the-art equipment and processes.

We are constrained to review the agency’s decision under these circumstances only so far as to determine whether the decision was arbitrary, capricious or beyond the scope of its discretion, which discretion is very broad:

So long as a public agency acts in good faith, even though they may reach a conclusion on facts upon which reasonable men may differ, the courts will not generally interfere with their judgment, even though the decision reached may appear to some persons to be erroneous. Volume Services Division v. Canteen Corp., 369 So.2d 391, 395 (Fla. 2d DCA 1979).

SDC has not demonstrated that HRS acted in bad faith or irrationally. Nor have they shown that the EDS proposed enhancements to the FMMIS accorded EDS a palpable economic advantage over the other offerors, where all the offerors were given the same opportunity to be innovative. Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982). Although Liberty County specifically dealt with the IFB procedure, fair economic competition is likewise a hallmark of proposals submitted pursuant to an RFP.

HRS’s conclusion that the proposed enhancements did not constitute material irregularities is supported by competent substantial evidence and we affirm. The other points raised by SDC were not raised or litigated before the hearing officer and SDC may not now argue these issues on appeal.

SHAW and JOANOS, JJ., concur.

      . IBM v. Department of General Services and Department of Highway Safety and Motor Vehicles, 11 FAR 140, DOAH Case No. 79-078 (1979).


author: PER CURIAM.

text:
    S & H FABRICATING & ENGINEERING, INC., and Fireman’s Fund Insurance Company, Appellants, v. Neda WAMLEY, Appellee.
    No. AK-113.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 5, 1983.
    Douglas Edward Daze, of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.
    Herman M. Klemick, Miami, for appellee.
   PER CURIAM.

Employer/carrier appeal from an order of the deputy commissioner awarding claimant a reasonable attorney’s fee, reimbursement for taxable costs, a penalty and interest. We affirm.

The deputy commissioner’s assessment against employer/carrier included an attorney’s fee for travel time incurred by claimant’s lawyer as well as travel expenses covering his plane fare and rental car. The deputy limited the taxability of travel expenses to the unique set of facts presented by the case, which he explained as follows:

Mr. Klemick [claimant’s attorney] tried to hire five different lawyers to handle the claimant’s case prior to traveling to Orlando and even prior to filing the claim. He was unsuccessful because of the unique medical picture presented and the fact that under the present law the collection of an attorney’s fee was not assured, nor was the reimbursement of the costs. From my review of this file and my observations of the entire proceedings this was a case where the employer/carrier refused to pay a justified claim when they first became aware that it was justified, upon receipt of Dr. Fa-ber’s report. The new law is suppose [sic] to be self executing and it is suppose [sic] to avoid litigation. Everything the employer/carrier did in this case defeated both of these purposes. They refused to pay the benefits and they were the ones who forced this litigation.

The addition of travel expenses, long distance calls and other costs amounted to a total of $718.74 in taxable costs against employer/carrier. Because of the parties’ stipulations pertaining to the taxability of other costs, the only item in dispute before this court concerns the award of travel expenses to reimburse claimant’s attorney.

Section 440.34(3), Florida Statutes (1981), provides in relevant part:

If the claimant should prevail in any proceedings before a deputy commissioner or court, there shall be taxed against the employer the reasonable costs of such proceedings, ....

Since claimant prevailed in the proceedings before the deputy commissioner, the key question for this court’s consideration involves the reasonableness of the costs assessed against employer/carrier. Based upon the record of the pending case and the remedial purpose of the Workers’ Compensation Act, see Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981), and Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981), the costs appear reasonable in both source and amount. In Sperry Remington Office Machines v. Stelling, 383 So.2d 1150 (Fla. 1st DCA 1980), this court upheld a determination that the claimant’s attorney was entitled to reimbursement for taxable costs. The reasons underlying this decision included the fact that the substance of the deputy commissioner’s order was supported by substantial competent evidence and the employer/carrier failed to investigate and accept the claim and thereby forced the burden of proving liability on the claimant to the extent that he required an attorney’s assistance for depositions and other actions. These same factors formed the basis for the deputy commissioner’s order awarding travel expenses as taxable costs in the instant case. We therefore affirm the order on appeal.

AFFIRMED.

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Anthony Carl HANNAH, Appellant, v. Raymond F. CHISOLM, Sal Vizzini, City of South Miami, a Municipal corporation, Consolidated Mutual Insurance Co., a foreign corporation, by and through Florida Insurance Guaranty Association, Inc., a domestic corporation, Appellees.
    No. 82-255.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 10, 1983.
    Philip Freidin and Robert Rossano, Miami, for appellant.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

As in, and on the authority of Robinson v. Allstate Ins. Co., 417 So.2d 778 (Fla. 3d DCA 1982), we reverse the dismissal of the complaint for the plaintiff’s failure to appear for the taking of his second, “followup” deposition. See generally, Summit Chase Condominium Association, Inc. v. Protean Investors, Inc., 421 So.2d 562 (Fla. 3d DCA 1982), and cases cited.


text:
    Richard C. JOYNER, Appellant, v. STATE of Florida, Appellee.
    No. 82-190.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 21, 1982.
    Ed Leinster of Ed Leinster, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Savoie v. State, 422 So.2d 308 (Fla. 1982).

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


author: COBB, Judge.

text:
    Kenneth LERMAN, Petitioner, v. The Honorable Lon S. CORNELIUS, as Circuit Judge of the Ninth Judicial Circuit of the State of Florida, Respondent.
    No. 82-1214.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 21, 1982.

      Raymond L. Goodman, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   COBB, Judge.

The petitioner, Kenneth Lerman, seeks prohibition of the trial court from proceeding to trial on a charge against him of carrying a concealed firearm. Lerman contends that double jeopardy bars the trial because he was previously adjudicated and sentenced on the same offense. We disagree and deny the petition for writ of prohibition.

The facts are as follows: Lerman pled nolo contendere on June 2, 1982 to the charge. In proffering this plea to the court, Lerman’s counsel stated the terms of the plea agreement to be that: the court would withhold adjudication of guilt, order a presentence investigation, and place a ninety-day cap on any county jail time imposed as a condition of probation. Counsel then said:

That ninety days can be changed to one year in the Orange County Jail if one of two things occurs: Mr. Lerman fails to appear for that sentencing date, and he will receive a copy of the notice today, or he is arrested between today and the sentencing date for anything that carries jail time.

The court accepted the proffered plea, ordered a pre-sentence investigation, and set sentencing for August 6,1982. On June 29, 1982, Lerman was arrested and charged with possession of controlled substances. On August 6, 1982, Lerman, accompanied by counsel, appeared for sentencing as scheduled. The trial court reviewed the pre-sentence investigation report, which did not contain the June arrest, and after an extended colloquy between the court and the defendant, the judge made the following statement:

I tell you right now, Mr. Lerman, I had a big question mark as to whether or not I was going to put you in jail today in this matter. I capped it out at ninety days. Since you do have a good record, I am not going to put you back in jail. If you violate your probation, you are probably going to jail for at least a year, and you could end up in the state penitentiary....

It is clear from the record that the trial judge was unaware of the intervening arrest. The defendant was not asked whether he had been arrested in the interim between June 2 and August 6. Lerman represents that he answered the court’s questions truthfully at the sentencing hearing on August 6. On advice of counsel, he did not volunteer information concerning his arrest on June 29, but states that he “was prepared to answer truthfully any questions concerning that matter had the Court sought to elicit information pertaining thereto.” At the close of the sentencing hearing the court withheld adjudication, placed Lerman on four years probation with no conditional jail time, and imposed a $250.00 fine.

Upon becoming aware of Lerman’s arrest, the trial judge, on August 19,1982, sua spon te entered an order vacating both the plea entered June 2, 1982, and the sentence entered on August 6,1982. The judge then scheduled the case for jury trial, and issued a capias for Lerman. It is this order which Lerman challenges by this petition.

Petitioner relies, inter alia, on the Florida Supreme Court case of Troupe v. Rowe, 283 So.2d 857 (Fla.1973), to support his double jeopardy argument. Troupe held that when a final judgment and sentence have been pronounced, and the sentencing hearing concluded, the matter cannot be reopened merely upon the prosecutor’s request for further argument. This, said the court, would violate the defendant’s constitutional guaranty not to be twice placed in jeopardy.

There is no doubt that jeopardy had already attached when the trial court discovered Lerman’s arrest. However, the conclusion that jeopardy attached is not dispos-itive. In Brown v. State, 367 So.2d 616 (Fla.1979), the court held that double jeopardy does not bar reprosecution of an accused who refuses to perform a condition of his guilty plea which has been accepted by the trial court on that basis. The defendant, Brown, entered a conditional guilty plea to second-degree murder, the condition being that he testify against another participant in the crime. He was originally charged with first-degree murder. When Brown refused to testify, the trial court vacated the plea, whereupon he was tried on a charge of first-degree murder.

Troupe is distinguishable from the instant case. In Troupe, the defendant did not breach his plea agreement nor make any misrepresentation, explicitly or by silence, to the trial court. Here, Herman failed to comply with one of the terms by which the judge agreed to the 90-day cap on jail time, to-wit: not get arrested for anything carrying jail time. When the court sentenced Lerman, it presumed that he had not been arrested.

We believe this case is most analogous to State ex rel. Miller v. Swanson, 411 So.2d 875 (Fla. 2d DCA 1981). There, the prosecutor and defense counsel had agreed that the defendant would receive a life sentence in exchange for his plea of guilty to a reduced charge of second-degree murder. At the subsequent sentencing hearing, a prosecutor other than the prosecutor with whom the defense counsel had made the plea agreement was present. The judge sentenced Miller to 80 years’ imprisonment, and neither party notified the judge of the prior agreement. Upon discovering the original agreement, the court vacated the plea. The Second District found that Miller’s failure to disclose the bargain to the trial court was comparable to the defendant’s failure to testify in Brown and held that double jeopardy did not bar reprosecution. Lerman’s failure to disclose his arrest at the sentencing hearing amounted to a misrepresentation to the court of his compliance with the plea agreement.

Accordingly, we deny the petition for writ of prohibition.

DENIED.

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

      . This case is apparently pending at this time.


author: HURLEY, Judge. BERANEK, Judge,

text:
    Ralph ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1310.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 5, 1983.

      Kenneth G. Spillias of Spillias & Mitchell, West Palm Beach, and William B. Seidel, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

The question on appeal is whether the harmless error rule may be used to evaluate a claim of improper joinder based on a pleading error. We answer in the affirmative and hold that an appellate court will look beyond the allegations of the charging document and will assess a claim of improper joinder in light of the proof adduced at trial. In reaching this decision we find it necessary to recede from the per se reversible error rule set forth in Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974), cert. dismissed, 327 So.2d 35 (Fla.1976).

The appellant, Ralph Adams, and another defendant, James Brunswick, were charged with conspiring to traffic in marijuana between the dates of August 10 and 16, 1979. Count two of the same information charged Brunswick with delivery of cocaine on August 13, 1979.

Adams filed a pre-trial motion for severance which alleged that joinder was improper under Rule 3.150(b), Fla.R.Crim.P., because he was not charged with the cocaine violation and the allegations in the information did not indicate that the cocaine delivery was part of the common plan or conspiracy charged in count one. The trial court denied the motion to sever, finding that the delivery of cocaine charged in count two was part of the same transaction charged in count one.

The proof at trial indicated that Adams came to Florida to purchase a large quantity of marijuana. He selected Brunswick to act as the middleman to procure the marijuana. Brunswick, in turn, initiated negotiations to purchase the marijuana from a third party without realizing that the third party was an undercover police officer. During the ensuing discussions, Brunswick gave the third party a small quantity of cocaine which formed the basis for the charge in count two. The purpose of the cocaine delivery was to help Brunswick establish a business relationship with the third party and to substantiate Brunswick’s credibility with that party as a large-scale drug dealer with access to various kinds and quantities of drugs. Indeed, this was Brunswick’s characterization of the transaction. In a recorded telephone conversation, the undercover agent urged Brunswick— who to this point was known only as “J.B.” —to identify himself and establish his “good faith.” The agent said, “Well, show me something so I know you’re on the up and up.” Brunswick, referring to the cocaine delivery, answered, “I did already. Remember, I gave it to you.” (R. 261). This and other evidence adduced at trial demonstrated that the delivery of cocaine was either in furtherance of the conspiracy to traffic in marijuana or, at a minimum, part of a common scheme or plan.

The question remains, however, whether it was essential for the information to comply strictly with Rule 3.150(b), Fla.R. Crim.P., which governs joinder of multiple defendants; the rule states:

Two or more defendants may be charged in the same indictment or information upon which they are to be tried:
(1) when each defendant is charged with accountability for each offense charged;
(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or
(3) when, even if conspiracy is not charged and all defendants are not charged in each county [sic], it is alleged that the several offenses charged were part of a common scheme or plan. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.

(Emphasis added.) Since Adams was not charged with the cocaine offense, subsection one is inapplicable. Thus, the issue is whether joinder was proper under subsections two or three.

We interpreted the joinder rule in Wilson v. State, supra. We held that, “[t]o determine whether the joinder is proper or not one must look to the allegations of the charging document. If they are insufficient there is a misjoinder and severance is required upon motion.” 298 So.2d at 435. We further stated that if the allegations in the information were deficient, “a defendant (upon motion) is entitled to a severance without a demonstration of prejudice.” Ibid. We agree with and abide by the Wilson opinion to the extent that it stands for the proposition that a defendant is entitled to severance if the allegations of the charging document do not meet the requirements of Rule 3.150(b), Fla.R.Crim.P.

The Wilson opinion, however, went much further than merely stating the law regarding a trial court’s obligations. The opinion created a per se reversible error rule applicable to severance errors. It characterized the right to a severance as a “vested procedural right,” “the denial of which constitutes reversible error.” Ibid. Today, we recede from this aspect of Wilson and adopt a more pragmatic view.

In deciding to recede from Wilson, we have found support in the federal cases interpreting Rule 8(b), Fed.R.Crim.P., the federal counterpart to Florida’s joinder rule. It is perhaps ironic that Wilson itself reiterated a maxim frequently applied in construing Florida procedural rules: similar state and federal procedural rules should be construed in the same fashion. Pursuant to this maxim, we reviewed relevant federal case law and found that it suggests that Wilson went too far in creating a per se reversal rule. Today, federal courts generally agree that an appellate court should look to the proof adduced at trial, rather than to the allegations of the charging document, to evaluate a claim of improper joinder.

The first federal case which rejected the notion that an appellate court must limit its gaze to the allegations of the charging document was Griffin v. United States, 272 F.2d 801, as modified on appeal, 273 F.2d 958 (5th Cir.1960). There, two defendants were tried together under separate indictments for violating the White Slave Act, 18 U.S.C.A., § 2421 (West 1970). On appeal, the Fifth Circuit dismissed the contention that joinder had to be established by the allegations in the indictments. The court held that “[i]f in fact the proof adduced on the trial of consolidated cases demonstrates that the two separate offenses could have been charged in a single indictment, the rule [8(b) ] is satisfied.” Id. at 802.

The Ninth Circuit followed Griffin in United States v. Roselli, 432 F.2d 879 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). The Roselli case involved a multi-count, multi-defendant indictment which charged conspiracy plus other crimes, including tax evasion. On appeal, defendants argued that the tax evasion counts were not linked to the conspiracy and should have been severed. The Court of Appeals declined to reverse and held:

Although Rule 8(b) standards are stated in terms of required allegations, a conviction will not be reversed on appeal if the evidence at trial establishes that joinder was proper; for even if the rule is read literally to require that the basis for join-der appear on the face of the pleading, the error would then be harmless.

432 F.2d at 899 n. 33.

The rationale of the federal approach comports with the modern view that pleading errors are not fatal unless they are prejudicial. Unquestionably, Florida follows this view. To illustrate, in Hoffman v. State, 397 So.2d 288 (Fla.1981), the Supreme Court quoted Judge Grimes and said:

“The rules are not intended to furnish a procedural device to escape justice, and we are again persuaded that the modern trend in criminal cases ‘is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial.’ ”

Id., at 290. See also Lackos v. State, 339 So.2d 217 (Fla.1976); Rule 3.140(o), Fla.R. Crim.P. The obvious benefit of this approach is that it furthers judicial economy without sacrificing basic fairness.

The evidence in the case at bar demonstrates that the delivery of cocaine was made either in furtherance of the conspiracy alleged in count one or, at least, as a part of a common scheme or plan. Therefore, even though the trial court should have either granted the defendant’s motion to sever or required the state to amend the information, that error has proved to be harmless and, thus, does not necessitate reversal on appeal.

To summarize, we recede from that portion of the holding in Wilson v. State, supra, which indicates that an error in pleading joinder of multiple defendants is per se reversible. In place thereof, we hold that the harmless error rule may be applied to evaluate a claim of improper joinder due to a pleading error. An appellate court will look beyond the allegations in the charging document and assess a claim of improper joinder in light of the proof adduced at trial.

We have considered the appellant’s other points on appeal and found them to be without merit. Therefore, the conviction is AFFIRMED.

LETTS, C.J., and DOWNEY, ANSTEAD, HERSEY, GLICKSTEIN and WALDEN, JJ., concur.

BERANEK, J., with whom DELL, J., joins, dissents with opinion.

BERANEK, Judge,

with whom DELL, Judge, joins, dissenting:

I respectfully dissent. I believe that Wilson v. State, supra, correctly construed the clear language of Florida Rule of Criminal Procedure 3.150(b). The Committee Note on this rule shows consideration of the result suggested by the majority. However, the drafters opted to omit ABA Standard 1.2(c)(2), which would permit joinder of charges “so closely connected in respect to time, place and occasion that it would be difficult to separate one charge from proof of others.” The Committee stated:

The Committee is of the opinion that defendants not connected in commission of an act and not connected by conspiracy or by common scheme or plan should not, under any circumstances, be joined.

In this case, the information charged Adams and Brunswick with conspiracy regarding marijuana in Count I and charged only Brunswick with delivery of cocaine in Count II. It was obviously prejudicial to Adams to be tried along with the cocaine allegation as to Brunswick. The information alleged no relationship whatsoever between the two offenses. Adams filed a proper motion to sever under Rule of Criminal Procedure 3.150 and Wilson v. State, supra. The trial court entered an order on April 14, 1980, reciting that on the argument of counsel the court finds that although the information does not allege it, that Counts I and II were really “part of the same transaction.” The court’s order, based solely on argument of counsel, is very close to an amendment of the information itself. I suggest that the only proper procedure under these circumstances would have been to either grant the severance or for the state to amend the information. I suggest reversible error occurred when this case was allowed to proceed to trial with an information stating one thing and a court order finding that it really meant something else. This is not the way the system is supposed to work. Although I would find a demonstration of prejudice by defendant unnecessary, I submit defendant was in fact prejudiced by these departures from established principles of criminal pleading and practice.

      . The federal rule provides:
      Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of defendants need not be charged in each count.
      18 U.S.C.A. Rule 8(b) (West 1975) (emphasis added).

      . Some of these cases also suggest that we should recede from the aspect of Wilson that we have left intact. See United States v. Florio, 315 F.Supp. 795 (E.D.N.Y.1970); United States v. Bally Manufacturing Corp., 345 F.Supp. 410, 430 (E.D.La.1972). But, because Florida criminal proceedings are usually by information rather than by indictment as in the federal system, and because an information can easily be amended, we think it is better not to recede from Wilson entirely.

      . Since we find that the evidence at trial justifies joinder in the case at bar, we need not reach the question of whether improper joinder is subject to the harmless error rule. See United States v. Granello, 365 F.2d 990 (2d Cir.1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967); Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); United States v. Chinchic, 655 F.2d 547 (4th Cir.1981).


text:
    Bette JOHNS, Appellant, v. Owen JOHNS, Appellee.
    No. 82-323.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 23, 1982.
    Hans C. Feige, Coral Springs, for appellant.

      Geneva Forrester Flaherty, Largo, for appellee..
   PER CURIAM.

Being dissatisfied with the alimony provisions contained in a final judgment entered in a dissolution of marriage action, the wife appeals. We affirm this facet on the basis of the tests and criteria found in Canakeris v. Canakeris, 382 So.2d 1197 (Fla.1980).

The trial court refused to award to the wife her attorney fees and costs, and the wife appeals. We reverse this refusal.

This was a 25 year marriage and, without going into detail, the somewhat meager assets of the parties were basically divided equally. In addition the wife was awarded $30.00 weekly child support and $75.00 monthly permanent alimony.

However, compellingly, there was a wide disparity in their respective present incomes with the husband’s gross income of $38,-000.00 per annum exceeding the wife’s income by about nine times. While it is true that expert testimony indicated that the wife had a bright income potential in times to come if she chose to pursue it, we still feel that the circumstances of this case reflect an abuse of the trial court’s discretion in not awarding her attorney fees and costs. Sloman v. Sloman, 418 So.2d 1249 (Fla. 4th DCA 1982); Mahoney v. Mahoney, 380 So.2d 497 (Fla.2d DCA 1980); Droubie v. Droubie, 379 So.2d 1331 (Fla.2d DCA 1980) and Canakeris v. Canakeris, supra.

We remand with respectful instructions to award the wife reasonable attorney fees and costs, and to structure payment of same taking into account the income and abilities of the husband.

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

DOWNEY, BERANEK and WALDEN, JJ., concur.


author: BERANEK, Judge.

text:
    Stan Jerome RIVERS, Appellant, v. STATE of Florida, Appellee.
    No. 82-516.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 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 Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). He initially asserts the evidence was insufficient to support his conviction. Although the sufficiency of the proof presents a close question, after thorough review, we conclude the State did present a prima facie ease and that a judgment of acquittal was not required. The case must however be reversed on the evidentiary rulings as to prior convictions. The question concerns the impeachment of Rivers under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold Rivers in contempt if he took the stand and testified that he had not been convicted of a crime. Rivers did testify and on direct examination stated he had been convicted of a crime twice.

The law of impeachment in this area was changed considerably by the Florida Legislature with the adoption of the Florida Evidence Code. Section 90.610 was amended to conform identically with Federal Rule of Evidence 609. Prior to this amendment, a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. The Florida Supreme Court so held in Hendrick v. Strazzulla, 135 So.2d 1 (Fla.1961). The Court found that “a crime is a crime” under the then existing impeachment statute. The argument that discrediting crimes must involve moral turpitude was expressly rejected.

Section 90.610, Florida Statutes (1981), now provides:

90.610 Conviction of certain crimes as impeachment.—
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:
(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
(b) Evidence of juvenile adjudications are inadmissible under this subsection.
(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the penden-cy of the appeal is admissible.
(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608.

Since the Legislature amended Section 90.610 to conform identically with Federal Rule 609 we assume an intent to give the new impeachment statute a meaning similar to its federal counterpart. Federal Rule 609, has been uniformly interpreted as requiring that a conviction may not be used for impeachment purposes unless the prosecution demonstrates that the offense involved more than mere stealth. Elements of deceitfulness, untruthfulness, or falsification have been held necessary before the offense is relevant to credibility. See United States v. Dorsey, 591 F.2d 922 (D.C.Cir.1978), and United States v. Ortega, 561 F.2d 803 (9th Cir.1977).

Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982), is a decision on point. The defendant was charged with petit theft and moved at the close of the State’s case to prevent the State from using a prior petit theft conviction for impeachment purposes. The trial court denied the motion and the defendant elected not to take the stand. On appeal, the First District reviewed the development of Section 90.610 and held at 97:

When a statute is amended, as was § 90.610(1) in 1978, we may assume in the absence of contrary indication that the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). Further, if a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts. Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977). In light of these principles of statutory construction and the uniform construction given to Federal Rule of Evidence 609 by the federal courts, we can only conclude that the Florida Legislature intended a like interpretation for § 90.610(1), Florida Statutes (1978). Therefore, we find ourselves compelled to hold that the simple crime of petit larceny may not be used for impeachment purposes unless the prosecution has demonstrated that such crime involves some element of deceit, untruthfulness, or falsification bearing upon the defendant’s capacity to testify truthfully.

We agree with the First District’s interpretation of Section 90.610 and conclude that the trial court erred in ruling that Rivers’ prior petit larceny convictions were admissible for impeachment without first requiring the prosecution to demonstrate that Rivers’ prior convictions were crimes of dishonesty within the meaning of Section 90.610, Florida Statutes (1981). In the face of an objection from defendant the state should have been required to go forward with proof as to the nature of the prior misdemeanor convictions.

We also conclude that this point is preserved for appropriate appellate review despite appellant’s admissions on his own direct examination. This is in complete accord with the ruling of Hall v. Oakley, supra, and with the federal decisions cited therein at page 95. Further, in the instant case, the trial court had already ruled that appellant could only avoid contempt by testifying that he had been previously convicted. The point is thus preserved. The appellant’s conviction is vacated and the matter remanded for new trial.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    Ronald Charles MISHMASH, Alan Richard Cahen, and David Byron Waldorf, Appellants, v. STATE of Florida, Appellee.
    No. AH-9.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 5, 1983.

      C. Rabón Martin, Tulsa, Okl. and Carlton P. Maddox of Dawson, Galant, Maddox, Su-lik & Nichols, P.A., Jacksonville, for appellants.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On March 9, 1981, at about 2:30 A.M., Lieutenant Lee and another Florida Marine Patrol officer passed three vehicles, an automobile and two pickup trucks with camper shells. No violation of law was observed, but Lt. Lee’s suspicions were aroused because the trucks appeared to be heavily loaded, were traveling in close proximity, and the hour was late. The lieutenant radioed Sergeant Adams of the Marine Patrol and ordered the pickups stopped. The arresting officers testified that upon approaching the vehicles they detected the smell of marijuana and could see burlap-wrapped bales inside the trucks. A search revealed what later was determined to be marijuana wrapped in plastic surrounded by burlap. The drivers of the two trucks, Waldorf and Mishmash, and passenger Cahen were all convicted by jury of possession of more than one hundred pounds of marijuana.

Defense counsel moved for a directed verdict of acquittal as to appellant Ca-hen, asserting that the evidence was insufficient to present a jury issue on the question of Cahen’s knowledge of the presence of the drug, one of the elements which the state was required to prove beyond a reasonable doubt. The trial court denied the motion. On this point we reverse. The circumstantial evidence against Cahen is insufficient to support a guilty verdict. The most damaging evidence against Cahen was Officer Maxwell’s testimony that, upon approaching the truck in which Cahen was a passenger, he could see burlap-wrapped bales inside the truck and could smell marijuana. The State introduced no evidence that Cahen was present when the truck was loaded or that he drove or exercised any possessory right over the vehicle.

“ ‘[Wjhere the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.’ ” Jaramillo v. State, 417 So.2d 257 (Fla.1982) (quoting McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977)). The mere presence of the odor of marijuana is not sufficient evidence of knowledge. Metzger v. State, 395 So.2d 1259 (Fla. 3d DCA 1981). The only additional evidence of guilt was the fact that burlap-covered bales were observed inside the trucks by the officers. The marijuana itself was covered, so that for Cahen to know by sense of sight the nature of the substance baled he would have to know that marijuana is usually wrapped in such covering. No evidence was offered by the State tending to prove that Cahen possessed such knowledge.

Law enforcement officials trained in the detection of contraband have no difficulty recognizing both the smell and packaging of marijuana. However, there remain even today members of the general public who have never smelled or seen packaged marijuana. We decline to indulge the presumption that Cahen saw the wrapped bales and should have recognized them as packaged marijuana.

We do not quantify the precise amount of additional state’s evidence which would be enough to allow a jury to consider the circumstantial evidence that was before the court as to Cahen. Certainly there must be some showing that the defendant in all likelihood saw the bales and had experience which would enable him to recognize marijuana. No such showing was made here; the evidence before the trial court did not exclude a reasonable hypothesis of innocence.

We find no merit in the other issues raised and affirm the convictions of appellants Waldorf and Mishmash.

REVERSED and REMANDED as to appellant Cahen, with directions to discharge Cahen.

LARRY G. SMITH, SHAW and «TOA-NOS, JJ., concur.


author: WENTWORTH, Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Clyde V. HANKERSON, Appellee.
    No. AJ-466.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    John L. Pearce, Dept, of Health and Rehabilitative Services, Tallahassee, for appellant.
    James D. White, Tallahassee Bar Ass’n, Legal Services Clinic, Tallahassee, for ap-pellee.
   WENTWORTH, Judge.

The Department of Health and Rehabilitative Services appeals an order of the Career Service Commission by which appel-lee’s dismissal from employment was reduced to a seven month suspension. We find that the Commission’s determinations lack competent substantial evidentiary support, and we therefore reverse the order appealed.

Appellee and a co-employee were full-time employees of HRS, and also held an after-hours job at a local high school. After a conversation between supervisory personnel at both places of employment, both employers began to suspect that appellee may have been duplicating hours at both jobs. Rather than immediately confronting appellee with this suspicion, HRS undertook a three month investigation. A comparison of time cards revealed approximately 80 instances of duplicated hours when appellee and the co-employee were “clocked in” at the high school before being “clocked out” at HRS. After appellee was physically observed working at the high school while still “clocked in” with HRS, formal disciplinary proceedings were commenced and the agency determined that appellee should be dismissed from his employment.

Appellee sought review by the Career Service Commission and a § 110.309, Florida Statutes, de-novo fact-finding hearing was held. The Commission reduced appel-lee’s termination to a suspension; this action was appealed and the cause was remanded to the Commission for more explicit factual findings. See Department of Health and Rehabilitative Services v. Hankerson, 404 So.2d 149 (Fla. 1st DCA 1981). On remand the Commission found that ap-pellee had falsified his time records and had participated in a scheme with the co-employee whereby they “clocked one another in before actually arriving ... and out after actually leaving .... ” However, the Commission further determined that appel-lee’s “supervision was loose,” and he was allowed “to come and go as he pleased.” The Commission also found that appellee “had reason to think . .. that he had consent to vary his time,” that appellee had perhaps “acted on or by implied consent of his supervisor,” and that “the agency failed in its responsibility as an employer to stop this conduct or to counsel the employee ... . ” The Commission determined that just cause did exist for disciplinary action, but did not justify the severity of the action taken, and the Commission then, pursuant to § 110.309(4)(a), reduced appellee’s dismissal to a seven month suspension.

In a § 110.309 de-novo hearing the Commission, sitting “as the initial and sole trier of the facts, may judge credibility of witnesses, draw inferences from the evidence, and weigh the evidence.” See Department of Natural Resources v. Edrington, 395 So.2d 577 (Fla. 1st DCA 1981). The burden of proof is upon the agency, see Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974), and this court’s task on appeal is merely to determine whether the Commission acted within the ambit of its discretionary authority. See Corte v. Career Service Commission, 386 So.2d 875 (Fla. 1st DCA 1980). In this regard the inquiry is whether the Commission action is supported by competent substantial evidence. Cf., Edrington. In the present case the record evidence supports the Commission’s determination that appellee falsified his time records and participated in a scheme with a co-employee whereby they duplicated hours at both places of employment. But there is a complete absence of any evidentiary support for the other findings detailed above, which the Commission relied on to support its action in this case. Although appellee was not always under the direct physical observation of his immediate supervisor, the evidence was uncontradicted that appellee was not allowed to leave HRS premises early without the express permission of his supervisor. There is no evidence that appellee, was ever led to believe he could vary his hours, and an “implied consent” theory is not supported by the agency’s failure to reprimand appellee during the three month investigatory period, as appellee was never advised that the agency was aware of ap-pellee’s misconduct. Furthermore, it should be noted that appellee did not merely “vary his time” as the Commission indicates, but also, as the Commission found, affirmatively falsified his time records.

We conclude that the factors which the Commission relied on in reducing appellee’s dismissal to a suspension are not supported by any competent substantial evidence, and we determine that the Commission, pursuant to § 110.309(2), should have affirmed appellee’s dismissal.

The order appealed is reversed and the cause remanded with directions that the Commission affirm the agency action of dismissal.

McCORD and BOOTH, JJ., concur.


text:
    James Edward JORDAN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-64.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 4, 1983.
    James Edward Jordan, pro se, appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Jordan, a prisoner at Cross City Correctional Institution, appeals from the commission’s determination of his presumptive parole release date. We agree with Jordan that the commission erred in aggregating certain offenses by invoking Fla.Admin. Code Rule 23-21.11.

In 1972, Jordan was convicted of robbery and auto theft and was sentenced to five years in prison. He was paroled in 1974. In 1975, while on parole, he was convicted of another robbery and was sentenced to 30 years. In 1981, he was again paroled. Within a week, Jordan was arrested for a traffic violation and for possession of a small amount of marijuana and paraphernalia. He was convicted and sentenced with fines but no jail time.

Of course, Jordan’s latest parole was revoked, and a new presumptive parole release date was set. The commission assigned 140 months to his 1972 robbery, and 140 months on the 1975 robbery. These two values were then added to determine the number of months of incarceration to be served before parole. The commission asserts that this procedure was proper because Rule 23-21.11(3)(b) requires “aggregation” when a prisoner “is currently serving a commitment which was imposed before his prior commitment expired.” The commission contends that because the second robbery sentence was imposed before the first robbery sentence expired, then these two commitments should be scored and aggregated now.

However, from our view of the record, it appears that Jordan is serving only one commitment, for the second robbery. The five year sentence imposed in 1972 has expired. Further, Jordan’s most recent convictions did not result in a jail sentence, so they cannot be plotted on the commission’s matrices; that is, there simply is no present commitment that could be used to invoke Rule 23-21.11. Therefore, we must reverse the commission’s action in aggregating Jordan’s offenses.

However, the commission did not violate the ex post facto clause in applying the new, harsher matrix time ranges here, even though Jordan committed the robbery long before the new rules went into effect. Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982).

Accordingly, this cause is affirmed in part, reversed in part, and remanded with instructions that the commission set a new presumptive parole release date for Jordan by striking 140 months from his period of incarceration before parole.

MILLS and ERVIN, JJ., concur.


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

text:
    CITY OF ALACHUA, Florida, a municipal corporation, Appellant and Cross-Appellee, v. Herbert MATILSKY, Barbara Matilsky, Rupert Murphy, Robert N. Worth, Robert W. Rogers, Kenneth M. Brown, Viola M. Brown, and Jule E. Schmidt, Appellees and Cross-Appellants.
    No. AL-139.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Allison E. Folds, of Watson, Folds, Stead-ham, Sproull, Christmann & Brashear, Gainesville, for appellant and cross-appel-lee.
    David LaCroix, Gainesville, for appellees and cross-appellants.
   ROBERT P. SMITH, Jr., Chief Judge.

The trial court correctly held, at the instance of appellee Schmidt, that Alachua’s ordinances annexing certain territory violate the contiguity requirement and other requirements of chapter 171, Florida Statutes. We find it unnecessary to reach, and so do not decide, questions on the cross-appeal concerning the standing of other objectors.

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: ERVIN, Judge.

text:
    Martin Douglas STARKS, Appellant, v. Linda Elizabeth STARKS, Appellee.
    No. AF-25.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Rehearing Denied Jan. 6, 1983.
    Wayne E. Flowers of Persons, Flowers & Westling, Jacksonville, for appellant.
    J. Nicholas Alexander, Jr., Jacksonville, for appellee.
   ERVIN, Judge.

Appellant challenges the lower court’s order refusing to honor a prior child custody award by a Texas court. As there is no transcript of the hearing at which the lower court determined not to be bound, we follow Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), and affirm. So too, we affirm the lower court’s imposition of conditions on appellant’s right to visit his minor children. We consider, however, that our affirmance, for the unique reasons stated, requires explanation.

The limited record before us reveals that the parties were married in Florida and moved to Texas. After residing there for no less than one year with her children, the wife and the children returned to Florida without the husband. Immediately thereafter, the husband sought in Texas a dissolution of the parties’ marriage and an order granting him custody of the minor children. The wife decided not to attend the Texas hearing, where the court ruled that it had jurisdiction, granted the dissolution, and awarded custody of the children to the husband.

Since the wife had ignored the Texas decree, the husband petitioned the trial court in Florida to enter a judgment honoring the Texas dissolution decree and custody award. The wife responded, asserting that the Texas court did not have jurisdiction to award custody of the minor children to the husband, and further requested the court to order that she be provided custody of the children and that the husband be directed to provide support for her maintenance of them. Although the record is unclear, the husband apparently countered by moving to dismiss the wife’s petition. After a hearing, the lower court, although establishing the Texas dissolution decree, determined it was not bound by the Texas custody award. Moreover, in denying the husband’s motion to dismiss the wife’s petition for support and custody, the lower court scheduled a second hearing for the purpose of determining which party should have custody of the minor children. After the second hearing, the lower court entered a final judgment awarding custody of the children to the wife. The husband now appeals the lower court’s refusal to honor the Texas court’s custody award as inconsistent with the “Uniform Child Custody Jurisdiction Act.” § 61.1302 et seq., Fla. Stat. (1979).

The parties have not favored us with a full and complete record. Although we have been furnished a transcript of the second hearing, we do not have a transcript of the first hearing. The missing transcript is crucial to a complete review of this case, because it was at this hearing the lower court determined that it was not bound by the Texas custody decree. Consequently, we have no way of knowing why the lower court reasoned it was not bound by the Texas decree, much less what facts were presented to it by which it could arrive at the decision rendered. This is unfortunate, because the appellant’s uncontroverted statement of the facts in his brief suggests that the lower court may have erred by incorrectly applying the “Uniform Child Custody Jurisdiction Act.” Compare Kraft v. District Court of Denver, 197 Colo. 10, 593 P.2d 321 (1979).

Florida Rule of Appellate Procedure 9.200(e) places upon the appellant the burden of preparing and transmitting the record to this court for review. Florida Rule of Appellate Procedure 9.200(f)(2) also requires an appellate court to allow the appellant an opportunity to supplement an incomplete record before deciding the case based on the insufficiency of the record. Kauffmann v. Baker, 392 So.2d 13, 15 (Fla. 4th DCA 1980). On our own motion, we ordered the appellant to supplement the record with the transcript of the first hearing. Our order further advised that in the absence of a transcript, Rule 9.200(b)(3) permits the appellant to prepare a statement of the evidence or proceedings from the best means available, including memory, and that if the appellant elected to prepare a statement of the evidence or proceedings, it was the appellee’s duty to cooperate by either approving the statement, registering objections to the statement or proposing amendments (if any). Kuenstler v. Andreasen, 386 So.2d 896 (Fla. 1st DCA 1980).

The appellant has filed a stipulated statement signed by counsel for both parties which reveals, among other things, that there is no transcript from the initial hearing, because no court reporter was present. Unfortunately, the stipulated statement is deficient because it recites very little of the parties’ argument to the lower court. Also, the statement does not include any rulings, determinations, or any explanations for the rulings made by the court at the hearing. As a result, we have no way of ascertaining whether or not the lower court made any determinations during the first hearing, since the stipulated statement contains no information on this point. Its single greatest deficiency is its failure to recite the facts presented to the lower court. We cannot, therefore, regard the stipulated statement as a sufficient substitute for the lack of a hearing transcript.

Having no way of discovering the factual context of this case as presented to the lower court, we must presume that the lower court did not err. Cf. Applegate, at 1152. A similar situation was confronted by the Florida Supreme Court in Applegate v. Barnett Bank of Tallahassee, wherein the court was confronted with a case in which there was no transcript of the hearing before the trial court. The court stated:

Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without know ing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

Id. at 1152 (e.s.).

Similarly in the case at bar, without a transcript of the first hearing or a suitable stipulated statement of the evidence that could act as a substitute for its non-inclusion in the record, we are unable to ascertain with certainty whether the lower court erred. As recently noted:

The appellant retains the burden of overcoming the presumption of correctness attributed to a trial court’s final judgment. Appellant’s burden includes a demonstration of error from the record, which he must supply. Litigants who proceed ... without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record.

Kauffmann, at 15 (emphasis in original). AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


text:
    Joseph A. CATIR and Cynthia Catir, Appellants, v. Bunguni Collidge ROBERSON and Jacksonville Transit Authority, Appellees.
    No. AK-464.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Eugene G. Peek, III, Jacksonville, for appellants.
    James M. McLean, Jacksonville, for ap-pellees.
   McCORD, Judge.

By this appeal the plaintiffs argue that the trial court erred in entering summary judgment in favor of the defendants based upon a determination that the defendants were not negligent as a matter of law. We agree and reverse for a jury trial.

On June 27, 1976, the plaintiffs and their infant son were proceeding northward in the right-hand lane of A1A in Jacksonville at approximately 35 to 40 mph. Shortly before they got to the intersection of A1A and Mayport Road, another car passed them at a speed of about 45 mph and pulled ahead into the right-hand lane of A1A. Not long after passing, however, this car abruptly cut over to the left-hand lane of this four lane road, crossing brads or bumps separating the left lane from the right lane. These brads or bumps demarcated plaintiffs’ right-hand lane as a thru lane and the left-hand lane as one into which traffic coming from the west could turn. When this car cut over, Joseph Catir, the driver, first saw the bus operated by the defendants parked about 20 feet away. In his deposition, he stated that the bus had stopped and was located “directly under or, if not, maybe a few feet ahead of (the) green arrow at the intersection.” His wife testified that the bus had just barely passed the place where one would make a left-hand turn. By referring to the map included in the record, this would apparently indicate the beginning or middle of the intersection. Further, another person arriving at the scene shortly after the collision testified that the bus was entirely within the thru lane as demarcated by the brads or bumps and was a little bit beyond the light. This witness, however, also indicated in his deposition testimony that, by the time he reached the scene of the accident approximately five minutes after it had occurred, the defendants’ bus and the plaintiffs’ Volkswagen had been pulled apart.

Upon this basic overlay of facts the defendants argue that they are not negligent as a matter of law. We disagree. A rebuttable presumption arises in Florida as to the negligence of an operator whose motor vehicle collides with another vehicle from the rear, and this presumption may be refuted only if the operator presumed negligent offers a “substantial and reasonable explanation for his failure to avoid the collision.” Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980). Upon these facts, one could reasonably conclude that the bus was improperly stopped within an intersection. See § 316.160(l)(a)3, Fla.Stat. (1975). Further, section 316.160(l)(a)6, Florida Statutes (1975) provides that “no person shall stop, stand, or park a vehicle .. . alongside or opposite any street excavation or obstruction when stopping, standing, or parking would obstruct traffic.” Since the brads or bumps in the road are essentially constructed to prevent, or render difficult, passage of motor vehicles over them, one could also reasonably conclude that the bus was improperly parked at a location where it could obstruct the ongoing flow of traffic. Thus, considering the above facts in a light most favorable to the plaintiffs’ case, as we must, we cannot conclude that the defendants had met their heavy burden of demonstrating the absence of any disputed issue of material fact and their entitlement to judgment as a matter of law.

Reversed and remanded for further proceedings consistent with this opinion.

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


text:
    Itapura CARDOSA, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. AN-46.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Itapura Cardosa, pro se.
    Jim Smith, Atty. Gen. and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

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

      . This opinion, which affirms the denial of appellant’s claim for administrative relief, does not prejudice appellant’s right to seek relief in the courts on a tort theory.


text:
    LANGDALE COMPANY, N.V., and Scot-Twin Construction Corp., Intervenor, Appellants, v. FLORIDA PAVING CO., INC., Appellee.
    No. 82-708.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Rehearing Denied Jan. 12, 1983.
    Pertnoy, Greenberg and Sobel and Stuart Sobel, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Paul T. Reid, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla. 3d DCA 1977); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla. 3d DCA), cert. denied, 135 So.2d 746 (Fla.1961); City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829 (Fla. 2d DCA 1979); United Bonding Insurance Co. v. Southeast Regional Builders, Inc., 236 So.2d 460 (Fla. 1st DCA 1970).


text:
    Marc DUCLOS, Appellant, v. STATE of Florida, Appellee.
    No. 81-936.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 5, 1983.
    Richard W. Springer of Kohl, Springer, Springer, Varner, Mighdoll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Rios, 409 So.2d 241 (Fla. 3d DCA 1982).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Clarence McFADDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-275.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Dec. 29, 1982.

      Richard L. Jorandby, Public Defender, and Ellen Morris, 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.

Defendant appeals his conviction and sentence on charges of kidnapping, two counts of sexual battery and robbery. Defendant was sentenced to 100 years on the kidnapping charge and 100 years on each of both sexual battery counts. He was sentenced to 50 years on the robbery count. The three 100 year sentences are consecutive and the 50 year sentence is concurrent. Defendant raises numerous arguments. Initially, we conclude that the court’s failure to instruct on circumstantial evidence was not error. See Perdue v. State, 421 So.2d 816 (Fla. 4th DCA 1982) [7 FLW 2425]. We find the instruction on intent given by the trial court concerning the robbery charge to be sufficient pursuant to the requirements of Bell v. State, 394 So.2d 979 (Fla.1981). We also consider the court’s charge adequate as to the definition of sexual battery. The charged sexual batteries were not lesser included offenses within the kidnapping charge and defendant was appropriately sentenced separately on these charges. See Faison v. State, (Fla.1982) [7 FLW 477], Defendant also raises various attacks on the 300 year sentence and the trial court’s retention of jurisdiction over the first third thereof. We find no error and conclude these arguments are disposed of by reference to Faison v. State, supra, and Borden v. State, 402 So.2d 1176 (Fla.1981).

Defendant also asserts error in that the trial court failed to state the justification for the retention of jurisdiction over the first third of his sentence. This argument was not presented to the trial court and we thus decline to consider it without prejudice to defendant’s right to apply to the trial court for relief pursuant to Rule of Criminal Procedure 3.850. See Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981).

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Magdelena KNEIP, Petitioner, v. The Honorable Robert W. TYSON, Jr., Judge of the Circuit Court of the Seventeenth Judicial Circuit of Florida in and for Broward County, Respondent.
    No. 82-1498.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 14, 1983.
    Joseph M. Gersten of Gersten & Vitale, P.A., Miami, and Edna L. Caruso, West Palm Beach, for petitioner.
    Kenneth R. Mikos of Friedrich, Blackwell, Mikos & Ridley, P.A., Fort Lauder-dale, for respondent-George Dewey Kneip, Jr.
    Russell E. Carlisle of Carlisle & Lecates, Fort Lauderdale, and Paul L. Driver, Jr., Fort Lauderdale, co-counsel for Michael S. Bernstein, respondent-guardian.
   PER CURIAM.

The Petition for Prohibition or Mandamus or for common law Certiorari is denied.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Raymond TRENARY, Appellant, v. STATE of Florida, Appellee.
    No. 81-2138.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 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.
   CLARKE, THOMAS L., Jr., Associate Judge.

On September 5, 1980, two days before his sixteenth birthday, Raymond Trenary was indicted by the Hendry County Grand Jury for first degree murder. Trenary was charged with the August 17, 1980, stabbing death of Earl S. Dyess. On May 26, 1981, Trenary pled nolo contendere to a lesser included offense of second degree murder (ordinarily a first degree felony, but subject to enhancement to a life felony pursuant to section 775.087, Florida Statutes (1979)). Upon entering his plea, Trenary stated that he understood the penalty could be life in prison; however, prior to being sentenced on July 27, 1981, he contended that the sentence should be pursuant to the Youthful Offender Act (which at the time of the offense was mandatory) which would limit the sentence to four years imprisonment followed by two years on community control. The trial judge declined to sentence pursuant to the Youthful Offender Act, but rather sentenced Trenary to one hundred thirty-seven years imprisonment, retaining jurisdiction over the first one third of the sentence.

The state concedes that unless Tre-nary was convicted of a life felony he meets all of the requirements for sentencing under the Youthful Offender Act, section 958.-04, Florida Statutes (1979). Second degree murder is ordinarily a first degree felony; however, in the instant case since Dyess succumbed to a stabbing (with a knife), section 775.087, Florida Statutes (1979), must be considered in regard to whether the degree of the offense was enhanced to a life felony thus disqualifying Trenary from youthful offender treatment.

Section 775.087, Florida Statutes (1979), provides:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.

The indictment charged Trenary with “stabbing the said Earl S. Dyess, Sr.” Implied in such language is the use of some type weapon. The record is clear that the weapon consisted of a knife (not a common pocketknife) and as such amounts to a weapon as contemplated by section 775.-087(1), Florida Statutes (1979). See Bryant v. State, 386 So.2d 237 (Fla.1980); § 790.-001(13), Fla.Stat. (1979). As a result, pursuant to section 775.087(1), Florida Statutes (1979), the offense was enhanced from that of a first degree felony to that of a life felony and thus Trenary did not qualify for sentencing under the Youthful Offender Act as section 958.04(l)(b), Florida Statutes (1979), requires, among other things, that the offense not exceed a first degree felony. Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981).

While the trial judge made no reference to section 775.087, Florida Statutes (1979), in ruling that the Youthful Offender Act was not applicable, it is well-settled law that a correct ruling of a trial court will be sustained even if incorrect reasons are assigned to the ruling. Moore v. City of St. Petersburg, 281 So.2d 549 (Fla. 2d DCA 1973).

We therefore affirm the decision of the trial judge to refuse to sentence pursuant to the Youthful Offender Act. Consideration must, however, be given to section 39.111(6)(a), Florida Statutes (1979), as Tre-nary was a juvenile at the time of the offense. This provision requires that a trial court, when imposing adult sanctions on a juvenile convicted of a crime, receive and consider a predisposition report prepared by the Department of Health and Rehabilitative Services. Although we recognize that the penalty for a life felony is a minimum of thirty years, section 39.111(6)(a), Florida Statutes (1979), makes no distinction between the degree of the crime and thus the trial court is required to comply therewith when imposing adult sanctions. Leach v. State, 407 So.2d 1066 (Fla. 2d DCA 1981).

Accordingly, the judgment is affirmed, but the case is remanded for correction of the judgment to reflect that the crime of which appellant was convicted was committed while in possession of a weapon and for resentencing after compliance with section 39.111(6), Florida Statutes (1979).

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

      . The mandatory sentencing provision has since been eliminated by the Legislature.


author: MILLS, Judge.

text:
    CHITTY & COMPANY, Appellant, v. PRESTON H. HASKELL COMPANY, Appellee.
    No. AI-411.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 4, 1983.
    John Paul Howard, Jacksonville, for appellant.
    Steven A. Werber and E. Robert Meek of Commander, Legler, Werber, Dawes & Sad-ler, Jacksonville, for appellee.
   MILLS, Judge.

Chitty & Company appeals a judgment of $40,000 entered in its favor following a bench trial on its counterclaim to Haskell’s contract action. We affirm.

The parties agree that Grossman Holdings v. Hourihan, 414 So.2d 1037 (Fla.1982), establishes the proper measure of damages. The evidence supports findings that: (1) the nonconforming warehouse constructed by Haskell could not be made economically conforming; (2) the building as constructed is worth in the real estate market $50,000 less than contracted for; and (3) the building is in substantial compliance, and in fact is in use, entitling Haskell to the unpaid contract price.

The trial court did not abuse its discretion in this case involving conflicting experts by refusing to allow Chitty to expand the issues on the day of trial. International Patrol v. Aetna Casualty, 396 So.2d 774 (Fla. 1st DCA 1981); Brown v. Montgomery Ward, 252 So.2d 817 (Fla. 1st DCA 1971).

There was no abuse of discretion in refusing to allow a property appraiser to offer opinions on methods of cure. This was clearly outside the area of his expertise.

AFFIRMED.

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


author: JOANOS, Judge.

text:
    J.L.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-364.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   JOANOS, Judge.

In this appeal of a final order withholding adjudication of delinquency and setting restitution, the public defender filed a brief according to the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he is unable to make a good faith argument that reversible error occurred in the trial court. Appellant was given an opportunity to submit a brief in proper person and did not do so. We have reviewed the record and have found no reversible error.

The final order is AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


text:
    SOUTH FLORIDA STATE HOSPITAL, State of Florida and Division of Risk Management, Appellants, v. Anna ANTHON and Division of Workers’ Compensation of the Department of Labor and Employment Security, Appellees.
    No. AK-426.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.

      Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, P.A., Miami, for appellees.
   MILLS, Judge.

The employer/carrier (E/C) in this workers’ compensation proceeding appeal the deputy commissioner’s order directing them to pay wage-loss benefits, to furnish An-thon with an EMG, and to pay interest, costs, and a ten percent penalty. We affirm.

Anthon has shown a change in employment status due to her injury and an adequate and good faith work search. Once this evidence has been presented by the employee, the burden of proving that the employee has refused work or has voluntarily limited his or her income is on the employer. Regency Inn v. Johnson, 422 So.2d 870 (Fla.lst DCA 1982). Because the E/C did not meet this burden the deputy commissioner did not err in awarding wage-loss benefits.

Nor did the deputy commissioner err in directing the E/C to pay for an EMG. There was expert testimony that one or a combination of Anthon’s injuries caused damage to her median nerve. Therefore, there is competent, substantial evidence to support that portion of the order.

Next, the E/C contend that the deputy commissioner erred in retaining jurisdiction to award attorney’s fees because there was no finding of bad faith. This argument is without merit because the deputy commissioner must make any finding of bad faith through a separate factfinding proceeding. Section 440.34(2)(b), Florida Statutes (1979).

Finally, the deputy commissioner did not err in awarding interest, costs, and a ten percent penalty. Sections 440.34(2) and 440.20(7), Florida Statutes (1979).

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


text:
    MORRISON & KNUDSEN/AMERICAN BRIDGE DIVISION and CNA Insurance Group, Appellants, v. William A. SCOTT, Appellee.
    No. AM-67.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Wendell J. Kiser and Marshall S. Adler of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appellee.
   PER CURIAM.

In this workers’ compensation action Appellants, employer/carrier, contend that the Deputy Commissioner (the Deputy) erred in awarding wage-loss benefits based on a permanent impairment rating not determined according to the American Medical Association Guides (the Guides) as required by Section 440.15(3)(a)(3), Florida Statutes (1979). We agree and reverse with instructions.

The Claimant suffered a compensable lower back injury on May 7, 1981. It was found that he reached MMI on July 31,1982 and Dr. Bourguignon testified that Claimant had a permanent impairment of 2%. Testimony further indicated that Dr. Bour-guignon based his assessment of impairment on Claimant’s subjective complaints of pain and not on the applicable tables for limitation of range of motion as set out in the Guides. That procedure was insufficient.

Because the Division has yet to adopt a permanent schedule by which impairment may be assessed, the Guides must be applied when the injury in question is covered by the Guides. Decor Painting & Iowa Mutual Insurance Company v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981); Mathis v. Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982). Although subjective pain is a factor to be considered when assessing impairment from neurological injuries according to the Guides, see Spring Air Mattress Co. v. Cox, 413 So.2d 1265 (Fla. 1st DCA 1982), it is not a factor to be applied in assessing a permanent impairment resulting from a lower back injury which is covered by Chapter 1 of the Guides. Where specific tables for assessing impairment are set out in the Guides, “the applicable table must be used, and it may not be combined with any other table or subjective factor to produce a rating in excess of that permitted.” Jamar Sportswear, Inc. v. Miller, 413 So.2d 811, 813 (Fla. 1st DCA 1982).

Because the Guides were not properly applied in this case, we reverse the Deputy’s Order and remand for the purpose of having claimant’s doctor relate his disability rating to the Guides. Cf. Jamar at 813. We do not address the other points raised by Appellants on this appeal since the threshold question of permanent impairment was improperly answered.

REVERSED and REMANDED for further consistent proceedings.

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


text:
    Jethro SHEETS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-84.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Jethro Sheets, pro se, appellant.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Sheets appeals the commission’s confirmation of his presumptive parole release date during his biennial review. We affirm.

The biennial review may not be used by Sheets to litigate issues that could have been raised during the initial establishment of his PPRD. Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla. 1st DCA 1982).

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

SHAW and JOANOS, JJ., concur.


text:
    David Eugene GALLON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-94.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    David Eugene Gallon, in pro. per., appellant.
    Malcolm S. Greenfield, Tallahassee, Gen. Counsel, Fla., Parole and Probation Com’n, for appellee.
   WIGGINTON, Judge.

Gallon, a prisoner at Avon Park Correctional Institution, appeals the commission’s confirmation of his presumptive parole release date. We affirm.

Contrary to Gallon’s assertions, the commission did not violate ex post facto proscriptions when it applied parole guidelines that were not in effect at the time of his crime. Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982) and Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982).

Gallon additionally argues that the commission erred in applying aggravating factors for both burglary and grand theft, where both offenses were elements of each other and involved a single transaction. A review of the record reveals that the grand theft conviction was neither an element of the burglary nor was it used as part of the salient factor score or in any other way connected with plotting Gallon’s matrix time range.

SHAW and JOANOS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Leroy WILLIAMS, Appellee.
    No. AN-1.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.

      Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.
    Alan R. Parlapiano, Public Defender, and C. Richard Parker, Asst. Public Defender, Gainesville, for appellee.
   WIGGINTON, Judge.

The State of Florida seeks review of the circuit court’s order granting Williams’ motion to suppress evidence. We affirm.

We find no error in the trial court’s ruling that the investigative stop made by the deputy sheriff was one made without “a founded or reasonable suspicion” that the defendant was engaged in criminal activity. The deputy’s testimony failed to point up any facts that would justify the stop, thus the evidence seized was tainted by the illegal stop. The record and cases support that holding and our affirmance. See State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978), Coladonato v. State, 348 So.2d 326 (Fla.1977), and McClain v. State, 408 So.2d 721 (Fla. 1st DCA 1982).

SHAW and JOANOS, JJ., concur.


text:
    William Mack ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. AN-306.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    William Mack Robinson, pro se., petitioner.
    No appearance for respondent.
   WIGGINTON, Judge.

Appellant William Mack Robinson’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 does not meet the minimal requirements of the rule for review. For example, the motion does not set forth: (1) the judgment or sentence under attack; (2) whether an appeal from the judgment or sentence was filed and if so, the disposition thereof; (3) whether previous post-conviction relief motions) were filed and if so, how many; or (4) a brief statement of supportive facts. See Fla.R.Crim.P. 3.850(a)(b)(c)(e). We affirm the lower court’s denial of the motion, but we do so without prejudice to appellant’s refiling of the motion in proper form. Cowick v. State, 419 So.2d 779 (Fla. 1st DCA 1982).

SHAW and JOANOS, JJ., concur.


text:
    John C. CANARD, Appellant, v. STATE of Florida, Appellee.
    No. 81-2514.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    John C. Canard, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence of the trial court. However, this cause is remanded for determination of the amount of credit for time served, if any, which appellant should be given. Crawford v. State, 406 So.2d 1234 (Fla. 2d DCA 1981).

Appellant need not be present for this purpose.

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


author: RYDER, Judge.

text:
    MONROSE, INC., Realtors, a Florida corporation, Appellant, v. Virginia Hall BALDRIDGE and Pinellas International Airpark, Inc., a dissolved Florida corporation, Appellees.
    No. 82-554.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1982.
    Gary W. Lyons of Phillips, McFarland, Gould & Wagstaff, P.A., Clearwater, for appellant.
    George F. Wilsey of Fisher & Wilsey, St. Petersburg, for appellees.
   RYDER, Judge.

Appellant seeks review of the lower court’s order granting summary judgment to appellees.

Appellees wanted to sell their leasehold interest and gave appellant, a real estate broker, the exclusive right to sell for an express period of time. Under the written agreement, when the term expired, a 90-day “protection period” for the appellant sprang into effect. The pertinent provision provided:

Such compensation shall be paid if property is sold, conveyed, or otherwise transferred within 90 days after termination of this authority or any extension thereof to anyone with whom Broker has had negotiations prior to final termination, provided owner has received notice in writing, including the names of prospective purchasers, before or upon termination of this agreement ....

Before the term expired, appellant notified appellees in writing of the prospective purchasers that appellant had negotiated with, one of which was Pinellas County. Appellees objected in a reply letter to appellant listing Pinellas County as a prospective purchaser. Appellant filed its complaint after the leasehold interest was transferred to Pinellas County, and no commission was paid to appellant.

According to the complaint, besides appellant’s efforts under the agreement to procure Pinellas County, appellees also were negotiating with the County during the term of the listing agreement and protection period. The complaint further alleged that appellees and the County, without appellant, reached an agreement to purchase the interest during the protection period. Appellant, in essence, complained that it had procured Pinellas County and that ap-pellees had perpetrated a subterfuge to avoid paying the commission.

Appellees moved for summary judgment based on the theory that there was an express contract between appellees and appellant, the terms of which were not met. Appellant’s affidavit in opposition to the summary judgment motion made factual contentions, as in the complaint, that appellant had procured Pinellas County and that appellees had deliberately delayed consummating the deal to avoid the broker’s commission. The trial judge in granting the motion essentially adopted appellees’ argument that the express terms of the contract were not met; therefore, no claim may be had.

Generally, the rule is that when parties contract to a specific matter, the terms of the contract control. However, exceptions to the rule exist and two exceptions were factually contended in the appellant’s complaint and in the affidavit in opposition to the motion for summary judgment. Namely, a procuring cause exception and an inequitable conduct exception were asserted. As to the procuring cause exception, Sanson v. Dutcher, Higgenbotham and Bass, Inc., 401 So.2d 913 (Fla. 4th DCA 1981), allowed a broker to recover his commission even after expiration of the listing agreement which contained an exclusive right to sell provision. The court in that case stated that the procuring cause doctrine

[ajpplies with equal, if not greater logic to the exclusive right to sale contracts. These contracts are frequently for short durations and require considerable commitment of time and effort by brokers. Common sense dictates that the intent of most parties to such contracts is to inferentially incorporate the doctrine into the contract; otherwise, a seller would have little motivation to close the sale prior to expiration of the contract.

Id. 915. (Footnote omitted).

As to an inequitable conduct exception, the Florida Supreme Court in Estes v. Moylan, 94 So.2d 362 (Fla.1957), stated:

Courts are not disposed to allow a real estate broker’s undertaking, in process of accomplishment, to be defeated by fraud or inequitable conduct on the part of his principal whereby the principal would profit by the broker’s service and at the time evade a just liability to make due compensation.

Id. 365 (quoting Dancy v. Baker, 206 Ala. 236, 80 So. 590, 591 (1921).

In short, there existed two causes of action with material facts to support them. Consequently, when the facts in the complaint and affidavit are viewed in a light most favorable to the party moved against, we conclude the appellees were not entitled to a summary judgment. Chapman v. Tison, 137 So.2d 605 (Fla. 2d DCA 1962) and Jerry Norris, Inc. v. Ackel, 311 So.2d 712 (Fla. 4th DCA 1975).

Accordingly, we REVERSE and REMAND the cause for further proceedings consistent with the views herein expressed.

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


text:
    AMERICAN BUILDINGS COMPANY, Appellant, v. ENERGY SUN POWER, INC., Appellee.
    No. 82-2077.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1982.
    Lawrence J. Robinson and Linda Brooks Robinson of Robinson & Robinson, P.A., Sarasota, for appellant.
    William J. Fuller, III of Fuller, Breslau & Stinnett, P.A., Sarasota, for appellee.
   PER CURIAM.

This is an interlocutory appeal whereby appellant, defendant below, challenges the lower court’s order denying its motion to quash service of process and to dismiss for lack of jurisdiction.

Appellee brought an action for damages against, appellant, a foreign corporation, and two other defendants. Service of process was attempted on appellant by serving an individual, H.K. Smith, whom appellee believed to be appellant’s agent. Appellant filed a motion to quash service of process and to dismiss for lack of jurisdiction. An affidavit of the purported agent, H.K. Smith, was attached to appellant’s motion. Appellant’s motion and Smith’s affidavit both maintained that Smith had never been appellant’s agent and that neither Smith, himself, nor appellant had ever held him out as such. According to the appendix submitted on appeal, there was no rebuttal filed to the motion and affidavit.

We find that in view of the unrebutted affidavit which denied Smith was appellant’s agent, the trial judge erred in denying appellant’s motion to quash and dismiss. Biscayne Athletic Club, Inc. v. Iacono, 367 So.2d 275 (Fla. 3d DCA 1979).

Accordingly, the order appealed is REVERSED.

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


text:
    Mary R. DEISNER, Appellant, v. Charles A. DEISNER, Appellee.
    No. AD-399.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Stephen H. Donohoe of Hooten, Donohoe & Arnold, Jacksonville, for appellant.
    Lane T. Burnett and L. Haldane Taylor, Jacksonville, for appellee.
   PER CURIAM.

Mary R. Deisner appeals a final judgment of dissolution of marriage, asserting that the trial court abused its discretion in its division of the marital property and in failing to award her periodic alimony in addition to lump sum alimony. We affirm the trial court’s division of property and reverse on the issue of periodic alimony.

The parties were married in 1963 and separated from July, 1975 to November, 1978, when they attempted a reconciliation. The petition for dissolution was filed in 1980. Wife, who is 55 years old and partially disabled with a back ailment, receives $480 a month from a disability pension and approximately $100 a month in wages from babysitting. She has approximately $8,500 in a savings account. Husband, age 52, reported a salary in 1980 of $33,400, plus approximately $3,400 interest from investments, and claims exclusive ownership of $36,000 in stocks, bonds and liquid assets which were not considered in the property distribution.

Until 1975, both parties contributed to a joint bank account, husband handling the bills and other financial matters. Appellant contributed her paycheck and was given money for groceries and other expenses. Since the 1975 separation, the parties have maintained separate accounts and have shared the bills, husband paying the mortgage and utilities. The court found that appellant is presently able to work only part time, based on her disability since 1972, and awarded her the marital home, one of two vehicles, lump sum alimony of approximately $13,000, and $1,500 toward the payment of her attorney’s fees. Husband received two lots on a river with a trailer and half-finished house and the other vehicle. The parties do not dispute the division of personal property.

Given the relative assets and incomes of the two parties and the trial court’s finding that wife is partially disabled, we find that the trial court abused its discretion in failing to award periodic alimony to appellant. The case is remanded to the trial court for further proceedings consistent with this opinion.

McCORD, BOOTH and WENTWORTH, JJ., concur.