text:
    Bethany B. VICKERS, Appellant, v. Robert L. VICKERS, Appellee.
    No. 81-2276.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Bayard E. Heath and John L. Zavertnik, Miami, for appellant.
    Robert I. Spiegelman, Miami, for appel-lee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

In making a temporary alimony and child support award of $215 biweekly, plus half the mortgage payments on the parties’ home for which the husband was obligated anyway, the trial judge observed that “the only thing I am doing is keeping everybody alive until the final hearing.” This just-prevent-them-from-going-to-the-poorhouse-until-the-case-is-over view of the legal principle controlling pendente lite awards, which is directly reflected in the inadequacy of the sums provided, is both widely held and thoroughly wrong. The correct standard by which these amounts are to be assessed is instead the familiar one which balances needs as fixed by the parties’ standard of living, on the one hand, and ability to pay, on the other. In Belcher v. Belcher, 271 So.2d 7, 11 (Fla.1972), the supreme court approved a temporary award under which

the husband must continue to support his wife during coverture by paying generally the same expenses (omitting long range and vacation items) and by paying amounts he had been providing prior to their separation. .. .

The court stated further:

The historical balance of ‘need and ability’ remains as the formula in determining alimony during coverture. This principle is repeatedly cited in the authorities as the basis for alimony, support and attorney’s fees to the wife from a husband more able to pay; it continues to undergird support provisions despite the present changes in our divorce laws (now ‘dissolution of marriage’).

The order under review was thus not based Upon a properly-founded exercise of discretion, but upon an error of law, see Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980); compare Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and cannot therefore be permitted to stand.

There is no reason, however, to require either a further hearing as to temporary relief or that the trial court exercise its discretion upon the appropriate standard. This is because for over six months after they separated, Vickers voluntarily sent his wife approximately $1,600 per month without order of court. He ceased doing so — an act which inspired the proceedings below — not because of any change in Ms. Vickers' needs or his ability, but because he was informed by counsel that he need not continue. In Belcher, the court stated, as we have seen, that the husband must continue to pay his wife roughly the same amounts he did before separating. The present situation is therefore an a for-tiori one. The parties have jointly recognized that $1,600 monthly is within the husband’s ability and satisfies the wife’s needs, completely in tune with the Belcher test as to a post -separation temporary award. Accord, Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970), cert. denied, 238 So.2d 107 (Fla.1970). In the virtually admitted absence of any basis to depart from the Vickers’ own conclusions to this effect, we reverse the order below and remand the cause with directions that appellee be required to pay $1,600 per month in temporary alimony and support.

Reversed and remanded with directions.

      . The case, which we are told has not even yet been set for final hearing on the financial aspects of the dissolution, has already been inordinately delayed below by the continuing controversy over the misnamed “temporaries” and by, inter alia, the fact that, even though extensive testimony on temporary relief had been taken before the trial judge, the action was submitted to a master for a so-called “pre-trial hearing” and recommendation as to the final judgment.

      . The $1,600 figure included all of the mortgage payments. In the final judgment, Vickers should therefore be credited with his wife’s half of those payments which he has voluntarily made and which he will be ordered to make as a result of this opinion. Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981).


source: Caselaw Access Project

author: PER CURIAM. DAUKSCH, Chief Judge,

license: Public Domain

text:
    Walter J. GATTI, Appellant, v. Clara M. GATTI, Appellee.
    No. 81-1109.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Rehearing Denied May 7, 1982.
    Mike Krasny of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, and Kenneth E. Padgett, Jr., Vero Beach, for appellant.
    Charles Sullivan and Roger W. LaJoie of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion the attorney’s fee awarded by the judge, who was not the judge who tried the case or had anything to do with the case except to award the fees, was unconscionably high. It is clear from the record the judge awarded almost $150.00 per hour to the attorney in a case which should not have taken the number of hours the attorney estimated he spent, especially since the case was settled (except for the fee matter) without a trial and for an amount not especially beneficial to the wife.

Further, I think the award to the wife for an accountant’s fee was exorbitant; especially so since the accountant was paid for the same thing the attorney claims he was entitled to be paid for.

I would reverse the awards of the fees and remand the matter to the original trial judge for a proper assessment in accordance with the usual guidelines.


author: COWART, Judge.

text:
    Salim Aref BOUCHACRA, Petitioner, v. The Honorable Kenneth M. LEFFLER, etc., Respondent.
    No. 82-151.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Rehearing Denied May 10, 1982.
    Bruce A. Nants, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   COWART, Judge.

Bouchacra seeks a writ of prohibition to prevent the trial court from proceeding with the State’s prosecution of him, alleging that the trial judge should have discharged him because his speedy trial rule rights were violated.

There was sufficient evidence for the trial judge to conclude that Bouchacrá had made himself unavailable for trial during the one hundred and eighty days from his arrest, thus completely removing Bou-chacra from the protection of the rule. Fla. R.Crim.P. 3.191(d)(3); State ex rel. Green v. Patterson, 279 So.2d 362 (Fla. 2d DCA 1963); see Wright v. State, 387 So.2d 1060 (Fla. 5th DCA 1980); Thigpen v. State, 350 So.2d 1078 (Fla. 5th DCA 1977). Furthermore, this factual ruling should not be reviewed and reversed by means of this petition for prohibition. See Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981).

DENIED.

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


author: ERVIN, Judge.

text:
    STATE of Florida, Appellant, v. Robert Eugene WILLITS, Appellee.
    No. ZZ-91.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    Rehearing Denied May 19, 1982.

      Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellant.
    W. Roderick Bowdoin of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   ERVIN, Judge.

The state appeals from an order granting a motion to suppress. Finding that the affidavit in support of the search warrant states probable cause to believe that a crime had been committed, we reverse and remand for further consistent proceedings.

The lower court’s order did not express its reasons for suppression, nevertheless, based upon the motion to suppress, and the arguments by counsel, we can only conclude that the court considered that the allegations in the affidavit were insufficient to a determination of either the source’s knowledge or the veracity of the information furnished. In our judgment, these asserted deficiencies require a careful examination of the affidavit supporting the search warrant.

The affiant represented that he was a duly designated deputy fire marshal for the State of Florida, charged with the responsibility of investigating fires throughout the state of Florida to determine their cause of origin, and that he was empowered to investigate fraudulent or false claims for insurance proceeds arising from fires. He specifically alleged the following:

On May 21, 1980 a fire occured [sic] in Suwanee [sic], Dixie County, Florida at the residence of Robert Eugene Willits, located adjacent to Leon Drive in the city of Suwanee [sic], in the immediate vicinity of the premises to be searched as more fully described on the face of this Affidavit and Warrant. The subject Robert Eugene Willits has filed, and received, insurance proceeds for property allegedly destroyed in said fire. The Hartford Insurance Company has paid the subject Willits approximately $60,000.00 (sixty thousand dollars) for said loss; included in the payment was payment for the items sought to be seized, as enumerated on the face of this affidavit and warrant. These items were claimed to have been destroyed in the fire at the subjects [sic] residence.
Investigation by your affiant has revealed that those items allegedly destroyed by fire were, in fact, not destroyed and were fraudulently transported and concealed from the residence destroyed by fire on May 21, 1980. Your affiant has taken sworn testimony from Emily Hawks, who is the ex-wife of the subject Willits. Emily Hawks was married to the subject Willits in September of 1979 and lived for a time in the residence which was destroyed by fire on May 21, 1980; Emily Hawks also lived in a trailer directly across Leon Drive from the residence of the subject Willits, when she was not cohabiting with the subject Willits during their marriage. During this interval of time the fire occurred. Emily Hawks has given sworn testimony to your affiant that the items enumerated in this Affidavit and Warrant were located on the premises to be searched at the time of the fire and were not destroyed in the fire. Emily Hawks personally observed those items on the premises to be searched, a houseboat, stored about the houseboat in various areas, only a few days before the fire. Emily Hawks has also personally observed these same items on the premises to be searched after the fire occurred, and within the last three (3) weeks. It is believed that these items are still located on the premises to be searched.

As we have previously observed in Barfield v. State, 396 So.2d 793, 795 (Fla. 1st DCA 1981), the rule of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), requires the allegations in the affidavit to reveal (1) the basis of the informant’s knowledge that the items to be seized were where the informant claimed they were, and (2) the veracity of the information provided by the informant. As to the latter requirement, or second prong of Aguilar-Spinelli, the affidavit must disclose either that the informant was credible or that his information was reliable. Aguilar, supra, 378 U.S. at 114-15, 84 S.Ct. at 1513-14. For a more thorough explication of this requirement, see Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 757-73 (1974).

We consider first that the state adequately demonstrated the reliability of its information since the facts recited in the affidavit could only have come from one of three sources: (1) the affiant himself, (2) some unnamed employee or agent of Hartford Insurance Company, or (3) Emily Hawks, the former wife of defendant. If the information came directly from the af-fiant, based upon his own investigation of the reported fire loss, then clearly there is no difficulty in establishing his credibility. The oath of the affiant, as a trustworthiness device, establishes per se the credibility of the affiant’s representations and, thereby, the reliability of his directly observed information. “The oath affirms the honesty of the statement and negatives the lie or imagination.” Spinelli v. United States, supra, 393 U.S. at 423, 89 S.Ct. at 592 (White, J., concurring). If the information was received from either some unnamed person employed by Hartford, or from Emily Hawks, again no difficulty arises as to the establishment of either source’s credibility. Both, in effect, may be considered to have the status of a citizen-informer, in which event “no prior ‘track record’ of the informer’s good past performance need be submitted to have [the source’s] .. . information credited.” Barfield v. State, supra, at 796.

The more difficult problem is the basis of the affiant’s or his sources’ knowledge that the defendant had filed a fraudulent insurance claim, seeking to recover indemnification for losses he had not in fact sustained. That prong is “normally satisfied by an explicit recitation that the [source] had seen certain incriminating facts with his own eyes or heard them with his own ears.” Moylan, supra, at 749. And the affidavit usually contains an “affirmative allegation that the affiant [or his informant] spoke with personal knowledge of the matters contained therein; it . . . [should] indicate any sources for the complainant’s belief; . . . . ” Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). A mere conclusion or affirmation of suspicion and belief without any statement of adequate supporting facts is of course inadequate to establish probable cause to search. See Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

In the instant case, the affidavit recites three basic allegations in support of the search warrant: (1) that the defendant filed a claim with Hartford Insurance Company for the purpose of seeking indemnification for the loss of property destroyed in a fire at his residence; (2) that he in fact received insurance proceeds in the total amount of $60,000 to cover the loss, and (3) that the claim filed for certain items of personal property alleged destroyed was false because, as defendant well knew, they had not been destroyed, but had in fact been removed from defendant’s home before the fire and placed in his houseboat, and remained there following the fire.

As to the latter allegation, the source’s knowledge of the claim’s falsity is easily satisfied since there are explicit recitations in the affidavit revealing that Emily Hawks had seen certain items claimed destroyed in defendant’s houseboat both before and following the fire. The first two allegations, relating to the filing of the insurance claim and the receipt, by defendant of $60,000 from Hartford as indemnification for the fire loss, are not buttressed by any specific statements as to how the affiant, or his sources, came about this information. In our judgment, however, the failure to recite explicitly the means by which such information was obtained is not fatal to the application for the search warrant.

We must remember the United States Supreme Court’s instructions that where the underlying “circumstances of [an affidavit] are detailed, where reason for crediting the source of the information is given, . . ., the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner , ” United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965). Spinelli did not interdict all information not supported by personal observations — rather that which was not easily verifiable. It looked to the quality of the information supplied in the affidavit. It required that the nature of the information be more substantial than “an off-hand remark heard at a neighborhood bar.” 393 U.S. at 417, 89 S.Ct. at 589.

Applying these rules of construction to the first two allegations before us, i.e., that Willits filed a claim for a fire loss, and received indemnification for his loss, we conclude that the very nature of such information is susceptible to simple verification. Obviously, such facts, on their face, are subject to far less difficult corroboration than is the allegation, without more, that the claim filed was fraudulent. It is certainly not unreasonable to assume that Wil-lits’ fire loss was well known in the small community where he resided, or that, if he had insurance, he would file a claim for his loss. Such facts, by themselves, bespeak no involvement in criminal activity and may be easily verified. Spinelli itself condones the acceptance of such information if the detail provided in the affidavit is so substantial as to indicate that the affiant ór his source spoke from firsthand knowledge, notwithstanding the absence of an explicit recitation that the information is supported by personal observations. Spinelli describes this alternative technique in the following terms:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.

393 U.S. at 416, 89 S.Ct. at 589. Spinelli refers to the detail provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as a “suitable benchmark” for aiding the magistrate’s determination “that the informant had gained his information in a reliable way.” 393 U.S. at 416-17, 89 S.Ct. at 589-90. The information recited in Draper included a specific physical description of the defendant, the clothes he would wear, the manner in which he would walk, and his anticipated arrival at the Denver train depot from Chicago on one of two specified dates. Id.

The particulars provided in the affidavit before us meet Spinellfs alternative, “self-verifying detail” test. For examples, in addition to facts reciting the filing of the claim of loss and its payment, the affidavit states the date of the fire, its location, and refers to a specific itemization on the face of the search warrant of some of the personal articles claimed to be lost and sought for seizure: two lounge chairs, one black, one green floral; one digital Sears clock radio, one afghan, one Sears table model tape player, one Polaroid camera, one pair field glasses in black case, and one Electro-lux canister-type vacuum cleaner. Additionally, the affidavit identifies the former wife of the defendant as having seen those specific items in defendant’s houseboat before and after the fire.

The abundance of detail furnished in the affidavit clearly implies that the affiant or his sources came about all of their information in a reliable way. We therefore conclude the lower court erred in suppressing the search warrant.

As to appellee’s cross-appeal, urging that the lower court erred in failing to quash the information filed against defendant, we find that we have no jurisdiction to entertain it, and accordingly dismiss it. See Fla. R.App.P. 9.140(b)(1).

The lower court’s order granting the motion to suppress is reversed, and the cause is remanded for further proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.


author: PER CURIAM.

text:
    Glenn C. BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. 81-1241.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied May 26, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals the sentence he received upon revocation of his probation contending it to be illegal under Troupe v. Rowe, 283 So.2d 857 (Fla.1973). The State has filed a brief in agreement with the appellant suggesting that the matter be remanded for resentencing. In view of this, we remand for resentencing. Counsel are directed to the opinion of this Court in Fogelman v. State, 410 So.2d 564 (Fla. 4th DCA 1982).

REMANDED FOR RESENTENCING.

LETTS, C. J., and BERANEK and GLICKSTEIN, JJ., concur.


text:
    FLETCHER LAND CORPORATION, a Florida corporation, and Hannon Realty, Inc., a Florida corporation, Defendants, Appellants, v. William A. EIPPER, III, and Bette M. Eipper, his wife, Plaintiffs, Appellees.
    No. AD-404.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Rehearing Denied May 21, 1982.
    Douglas H. Morford, of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for defendants, appellants.
    John Moffitt Howell, of Howell & Howell, P. A., Jacksonville Beach, for plaintiffs, appellees.
   PER CURIAM.

We have considered the authorities contained in the parties’ briefs in addition to those in the notices of supplemental authority filed by the parties subsequent to oral argument. Finding no reversible error in the Final Judgment of the trial court, that judgment is AFFIRMED.

JOANOS, THOMPSON and WIGGIN-TON, JJ., concur.


text:
    Harold Julian SIEGEL, Appellant, v. CAREER SERVICE COMMISSION, Florida State University, et al., Appellees.
    No. AG-417.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Rehearing Denied May 27, 1982.
    Harold Julian Siegel, in pro. per.
    No appearance for Career Service Commission.
    Gerald B. Jaski, Gen. Counsel, Florida State University, Tallahassee, for appellee Florida State University.
   PER CURIAM.

In his brief, the appellant asserts several claims and requests several remedies. However, this case has come to us in the context of an appeal from a Career Service Commission order that affirmed the employer’s three-day suspension of the appellant, so our scope of review must be limited to judging the propriety of that order. Because the appellant has not demonstrated reversible error, we affirm.

We write this opinion to make clear that we have no authority to weigh the factual matters presented by the appellant. Fact-finding is solely within the province of lower tribunals, either administrative or'judicial. The appellant’s complaints may only be raised at the trial level and, if the lower tribunal is within the jurisdiction of this Court, he may then bring an appeal here. In effect, the appellant asks us to act as his attorney in choosing a proper forum to present his charges. This we cannot do.

Accordingly, the Career Service Commission order is affirmed.

JOANOS, THOMPSON and WIGGIN-TON, JJ., concur.


text:
    JEAN BARNES COLLECTIONS and American States Insurance Company, Appellants, v. Jayne Rhodes ELSTON, Appellee.
    No. AD-401.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Rehearing Denied May 25, 1982.
    Bernard J. Zimmerman of Akerman, Sen-terfitt & Eidson, Orlando, for appellants.
    John Marshall Kest of Wooton, Honeywell, Rest & Martinez, Orlando, for appel-lee.
   ERVIN, Judge.

In affirming the deputy commissioner’s order that claimant suffered an injury as a result of an attack and rape, we find that the injury was one arising out of and in the course of her employment because it was a compensable injury under the “traveling employee’s rule.”

The deputy commissioner specifically found that the claimant had been hired by the appellant/employer and that she had been requested by the employer to travel with her in a company car from Tampa to Fort Lauderdale for the purpose of obtaining further training. En route, the employer purchased both meals and hotel lodging in Orlando for the claimant. While in her hotel room, sometime after 9 p. m. on a Sunday evening, claimant was attacked and raped. Because there is competent and substantial evidence to support these findings, we affirm the deputy commissioner’s determination. Redding v. Cobia Boat Co., 389 So.2d 1003, 1004 (Fla.1980).

The appellants argue that the claimant’s injury was not one “arising out of and in the course of employment”, as required by Section 440.02(6), Florida Statutes (1977). Although the appellants suggest that the claimant’s injury did not causally arise out of her employment — a contention that we reject — the primary thrust of their argument rests on the position that the accident was not one occurring within the time, space, and circumstances of her employment. In essence, appellants argue that the injury did not occur within the course of claimant’s employment. See Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980).

We reject this contention, because the claimant was traveling at her employer’s request to Fort Lauderdale to receive further training. Applicable to this case is the “traveling employees” rule, which states:

Employees whose work entails travel away from the employer’s premises are held ... to be within the course of their employment continuously during the trip, except when a distinct department [sic] on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held com-pensable.

1A Larson, Workmen’s Compensation Law, § 25.00 (1979).

As noted in an authoritative opinion in Ridgway v. Combined Insurance Co. of America, 98 Idaho 410, 565 P.2d 1367, 1372 (1977) (Bistline, Justice, concurring), the traveling employees rule applies not only to traveling sales personnel, but to workers attending conferences or training sessions. Because the appellants have presented no evidence to show a personal errand by the claimant at the time of her rape, it is presumed the injury is compensable. Hacker v. St. Petersburg Kennel Club, 396 So.2d 161 (Fla.1981).

Accordingly, the deputy commissioner’s order is AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge.

text:
    STATE of Florida, Appellant, v. Marion Alford BOWEN, Appellee.
    No. AF-449.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Rehearing Denied May 21, 1982.

      Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellant.
    Lacy Mahon, Jr., of Mahon, Mahon & Farley, P. A., Jacksonville, for appellee.
   WIGGINTON, Judge.

The State has appealed the order of the trial court granting Bowen’s Motion to Dismiss Count I of the information charging him with a violation of Florida’s Racketeer Influenced and Corrupt Organization Act (RICO Act). The issue presented on appeal is whether Florida’s RICO Act is applicable to an individual conducting a sole proprietorship in a pattern of racketeering activity. Our review of the history of the Act and of the statutory language compels us to answer that question in the affirmative. We therefore reverse.

The facts are undisputed and show that Bowen, the sole proprietor of a mini-storage warehouse in which he bought and sold gold and silver, was the subject of a general investigation of gold and silver dealers jointly initiated by the Florida Department of Law Enforcement and the Jacksonville Sheriff’s office in January, 1981. As a result of the investigation, Bowen was arrested and charged by information with violation of Florida’s RICO Act, Section 943.-462(3), Florida Statutes (1979), and three separate counts of dealing in stolen property in violation of Section 812.019, Florida Statutes (1979). Bowen filed a Motion to Dismiss, challenging Count I for failure to properly charge the commission of an offense. The trial court granted Bowen’s motion, thereby dismissing the RICO count.

The Florida RICO Act was enacted to resist organized crime from infiltrating and corrupting legitimate businesses by providing an outlet for illegally obtained capital, from harming innocent investors, entrepreneurs, merchants and consumers, and from interfering with free competition and thereby constituting a substantial danger to the economic and general welfare of the state. See generally Note, Racketeers and Non-Racketeers Alike Should Fear Florida’s RICO Act, 6 F.S.U.L.Rev. 483 (1978); and State v. Whiddon, 384 So.2d 1269 (Fla.1980). Specifically, Section 943.-462(3) makes it unlawful for any person “employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” Bowen argues, however, that that section does not contemplate an individual associating with an “enterprise” that is himself, in a “pattern of racketeering activity.” On the contrary, the plain and unambiguous language of the statute would suggest otherwise.

To begin, “racketeering activity,” as defined by Section 943.461, Florida Statutes, specifically includes Section 812.019, prohibiting the trafficking in stolen property, the offense with which Bowen was charged. See Section 943.461(l)(a)15.

Moreover, “enterprise,” as defined by subsection 943.461(3), means “any” individual or sole proprietorship. The inclusion of “any” within the definition clearly suggests a legislative intent to direct the thrust of the RICO Act against an individual “associating with himself.” Had the legislature not intended to reach individuals such as Bowen, it could easily have narrowed the sweep of Section 943.461(3), by supplanting “any” with “another.” United States v. Turkette, 452 U.S. 576, 577-581, 101 S.Ct. 2524, 2526-2528, 69 L.Ed.2d 246, 251-253 (1981); Accord United States v. Elliot, 571 F.2d 880 (5th Cir. 1981) (Fifth Circuit, interpreting the Federal RICO Act, 18 U.S.C. §§ 1961 et seq., against which Florida’s Act is patterned, held that number of persons making up an enterprise to be irrelevant in that “even a single individual may be considered an ‘enterprise’ under the statutory definition”).

Consequently, as the trial court’s order, dismissing Count I of the information, was premised on the theory that Bowen necessarily had to have associated with a second person or legal entity in order for his offense to be a violation of the RICO Act, it was based on a misinterpretation of the statute and accordingly is reversed.

JOANOS and THOMPSON, JJ., concur.


text:
    Omar P. HAMLEN, Appellant, v. FAIRCHILD INDUSTRIES, INC., Appellee.
    No. AG-415.
    District Court of Appeal of Florida, First District.
    April 15, 1982.
    Rehearing Denied May 24, 1982.
    James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Joseph D. Lorenz and Jack R. Heflin of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellee.
   ERVIN, Judge.

' In this appeal from a judgment on the pleadings, we affirm that portion of the lower court’s determination, finding that appellant and plaintiff below, Omar P. Hamlen, could not maintain an action against appellee and his employer, Fairchild Industries, Inc., for breach of an oral contract promising to provide him permanent employment. We reverse, however, the judgment to the extent that it bars Ham-len’s action charging a tortious, fraudulent misrepresentation of the employment contract.

Hamlen’s complaint alleges that he was formerly employed by Westinghouse in a specialized position as a quality control technician in non-destructive testing of metal compounds; that agents of appellee and defendant, Fairchild Industries, Inc., induced Hamlen to terminate employment with Westinghouse, thereby causing him to forego his rights to retirement and related benefits; that the inducement was in the form of a promise of permanent employment at Fairchild; that at the time of the inducement Fairchild secretly had no intention of giving Hamlen a permanent position; that Hamlen was laid off after working for Fairchild for a short period; that he has since been unable to obtain work with either Westinghouse or Fairchild, and that he relied upon this misrepresentation to his detriment, thereby causing damages, both compensatory and punitive.

The propriety of the action based on the alleged breach of the oral contract is controlled by this court’s opinion in Russell & Axon v. Handshoe, 176 So.2d 909 (Fla. 1st DCA 1965), cert. denied, 188 So.2d 317 (Fla.1966), wherein we precluded a former employee from suing an employer under such a theory. Although Russell & Axon involved a written contract of employment — not as here an oral contract — it is nevertheless applicable, because both contracts allegedly promised “permanent” employment. Quoting Orsini v. Trojan Steel Corp., 219 S.C. 272, 64 S.E.2d 878, 880 (1951), with approval, the First District observed that permanent employment means “ ‘a steady job, a position of some permanence.’ ” Id. at 916. Yet, notwithstanding the element of permanence, the court continued that in the absence of an agreement for employment for a fixed term or duration, a contract for permanent employment usually refers to “ ‘an indefinite general hiring, terminable at will.’ ” Id. Hamlen’s complaint fails on this basis, because he has alleged that the contract is one for permanent work, which constitutes an indefinite hiring. Indefinite terms of employment are recognized as instances in which “either party for any reason may terminate it [the employment] at any time and no action may be maintained for breach of the employment contract.” De Marco v. Publix Super Markets, Inc., 360 So.2d 134, 136 (Fla. 3d DCA 1978), aff’d., 384 So.2d 1253 (Fla.1980).

The complaint before us is also deficient in that it lacks any mutuality of obligation. Once again, reference to Russell & Axon is instructive. The court expressed its concern about the lack of mutuality of a contract, which had sought to bind the employer, but not the employee, in the following terms:

It cannot be reasonably contended that the contract of employment in this case is such that the employer could require the employee to remain in the service of the company for any fixed period of time, whether one year or longer, if the employee elected to terminate his employment. This being true, the contract is so lacking in mutuality of obligation as to render it invalid.

Russell & Axon, supra, at 916. We believe that the contract alleged in the appellant’s complaint — silent as to any conditions affecting Hamlen’s right to terminate — suffers from a similar lack of mutuality of obligation. See generally, 11 Fla.Jur.2d, Contracts, § 15 (1979). Therefore, we affirm the judgment on the pleadings as it relates to appellant’s action for breach of an employment contract.

Appellant’s complaint alleges also that Fairchild Industries made fraudulent misrepresentations in guaranteeing him permanent employment. An action for damages based upon a fraudulent misrepresentation sounds, of course, in tort; therefore our disposition of the action in contract is legally distinct from the tort issue. To state a viable cause of action under such a theory, the five following elements must be present:

(1) A false statement of fact; (2) known by the defendant to be false at the time is [sic] was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff.

Vance v. Indian Hammock Hunt & Riding Club, 403 So.2d 1367, 1371, n. 7 (Fla. 4th DCA 1981); Poliakoff v. National Emblem Insurance Co., 249 So.2d 477 (Fla. 3d DCA 1971), cert. denied, 254 So.2d 790 (Fla.). Appellant’s pleadings sufficiently allege each of these five points.

Fairchild argues that an employer’s false promise to a prospective employee regarding future acts, such as the right to permanent employment secure from conditions such as layoffs, is merely promissory in nature and relates to a future act, and even if the promise is coupled with a present intent not to perform, such a situation is not actionable, citing to Godwin v. Dinkler St. Louis Management Corp., 419 S.W.2d 70 (Mo.1967); Woods v. Scott, 107 Vt. 249, 178 A. 886 (1935); 37 Am.Jur.2d, Fraud and Deceit, §§ 60-63; 72 (1968).

This position is not applicable, however, to the instant ease. Although Florida courts acknowledge the general rule of law that the fraud alleged must refer to a present or existing fact, “the cases recognize an exception where the promise to perform a material matter in the future is made without any intention of performing or made with the positive intention not to perform.” Vance, supra, at 1372; see also 27 Fla.Jur.2d, Fraud and Deceit, § 25 (1981). Actually, this principle is not so much an exception to the general rule that the misrepresentation must be of a past or present fact, as it is a recognition that a misstatement of a material and subsisting fact of the promisor’s intentions in regard to performance may be actionable under the modern theory. 37 Am.Jur.2d, Fraud and Deceit, § 68 nn. 6-7 (1968).

Therefore, in regard to actions in tort, alleging a fraudulent misrepresentation as to the prospect of permanent employment, Florida has aligned itself with the apparent majority view that a fraudulent misrepresentation to offer an individual a permanent job, coupled with the nonin-tent to perform, is actionable. We consider that the allegations of the complaint, fairly interpreted, fall within the above category.

The judgment on the pleadings for the appellee is REVERSED in regard to the tort action sounding in fraudulent misrepresentation, and AFFIRMED in. regard to the breach of employment contract action.

SHIVERS and WENTWORTH, JJ., concur.

      . For other cases in this regard, see Employer’s Misrepresentation As To Prospect, or Duration, of Employment As Actionable Fraud, 24 A.L. R.3d 1412, § 5 (1969).

      . We consider it important to note that although the defendant below affirmatively defended on the basis of the statute of frauds, this defense was not argued on appeal as a theory on which the judgment should be affirmed. Consequently, our opinion does not address the issue raised in the answer.


text:
    PETERS MACHINERY CORPORATION, Appellant, v. BLAIRSVILLE MACHINE PRODUCTS CO., INC., a Pennsylvania corp., Appellee.
    No. 81-820.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied May 28, 1982.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Maland & Turetsky and Robert C. Ma-land, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Peters Machinery Corporation, defendant below, appeals from a final judgment entered against it and alleges as error the trial court’s failure to set aside a default and subsequent final judgment. A second, but collateral issue with regard to attorney’s fees awarded by the trial court is also claimed as error.

As to the first issue, the appellant has failed to provide a proper record for our review. Accordingly, we presume the trial court’s findings following an evidentiary hearing are correct. Fricke v. Gaines Construction Co., 105 So.2d 374 (Fla. 3rd DCA 1958). Nor did Peters allege a meritorious defense required by Fla.R.Civ.P. 1.540. GACL, Inc. v. Zeger, 276 So.2d 552 (Fla. 3rd DCA 1973). The claim was liquidated and judgment entered on plaintiff’s theory of money had and received was proper. Bird v. International Graphics, Inc., 374 So.2d 52 (Fla. 3rd DCA 1979).

The second issue presented, regarding attorney’s fees, has merit and we reverse that portion of the judgment. Peters was entitled to notice of the unliquidated claim of attorney’s fees and was entitled to contest the propriety and the amount of the fees. Scott v. Johnson, 386 So.2d 67 (Fla. 3rd DCA 1980); Lyle v. Lyle, 167 So.2d 256 (Fla. 2nd DCA 1964).

Affirmed in part, reversed in part and remanded for further proceedings,


author: McCORD, Judge.

text:
    STATE of Florida, DEPARTMENT OF GENERAL SERVICES, Appellant, v. BILTMORE CONSTRUCTION COMPANY, Appellee.
    No. AD-477.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied May 24, 1982.

      Sylvan Strickland and Spiro T. Kypreos, Tallahassee, for appellant.
    Dennis P. Thompson for Richards, No-dine, Gilkey, Fite, Meyer & Thompson, P. A., Clearwater, for appellee.
   McCORD, Judge.

This appeal is from an order of the trial court granting appellee’s motion for summary judgment in a suit brought by appellant against appellee for damages allegedly incurred from alleged breach by appellee of a construction contract between appellant and appellee. We reverse.

The trial court’s order on motion for summary judgment dismissed the cause for lack of jurisdiction over the subject matter and stated as the basis therefor the following:

The undisputed facts show that the administrative proceeding described in part in paragraph 8 of Plaintiff’s First Amendment to Amended Complaint resulted in a decision by the First District Court of Appeal in which it quashed the final order of the Department of General Services. Biltmore Construction Co. v. Florida Department of General Services, 363 So.2d 851, 854 (Fla. 1st D.C.A. 1978). It further appears that no further action in that proceeding was taken subsequent to the First District Court of Appeal’s decision on November 1, 1978. This action was initiated on October 25, 1979. Accordingly, the Court is of the opinion that it is without jurisdiction of the subject matter because the administrative proceeding has not terminated. Tamiami Trail Tours Inc. v. Railroad Comm., 128 Fla. 25, 174 So. 451 (1937).

The opinion of this Court in Biltmore Construction Co. v. Florida Department of General Services, referred to by the trial court above, was review of an administrative order of the Florida Department of General Services (the Department) which required Biltmore Construction Company (Biltmore) to specifically perform the construction contract which is the subject matter of this action. The proceeding had been brought by Biltmore upon its claim for $9,085.16 retained by the Department from the total contract price for the construction of $3,272,000. The hearing examiner who was appointed to hear the claim entered his recommended order that the claim of Bilt-more for the retainage be denied. The Department then entered its final order directing Biltmore to specifically perform the contract. We granted certiorari and quashed the Department’s order. We ruled that the Department departed from the essential requirements of law by ordering specific performance of the contract which only a court in the exercise of its equitable powers may decree. No further action was taken in the administrative proceeding, but the Department filed the present action in circuit court against Biltmore for breach of contract.

The trial court erred in dismissing the contract action on the ground that it did not have subject matter jurisdiction. The question of whether or not jurisdiction over a controversy is in the court or in an administrative agency proceeding is one of policy and not of power or jurisdiction. See Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978). , As a matter of policy, a court should not exercise its jurisdiction if an adequate administrative remedy is available until that remedy has been exhausted. Key Haven Associated v. Board of Trustees, 400 So.2d 66 (Fla. 1st DCA 1981); Friends of the Everglades v. State Dept. of Environmental Regulation, 387 So.2d 511 (Fla. 1st DCA 1980); Carrollwood State Bank v. Lewis, 362 So.2d 110 (Fla. 1st DCA 1978), cert. den., 372 So.2d 467 (Fla.1979).

Here the Department has no administrative remedy for alleged breach of its contract by Biltmore unless it claims no more in damages than the amount of re-tainage it holds. If it claims damages in excess of that amount, its only remedy is in court because the only adjudication that can be made in the administrative proceeding is whether or hot Biltmore is entitled to be paid all of the retainage, part of it or none of it. Thus, if the Department considers that its damages do not exceed the amount of the retainage, the administrative proceeding which has been brought by Bilt-more can and should adjudicate that question subject to review by this Court. If the Department considers that its damages exceed such amount, the trial court should proceed to adjudicate the breach of contract action.

The Department’s amended complaint in this cause is nonspecific as to the damages it seeks. It alleges damages in excess of $2,500. Thus, we do not know whether it is claiming more or less than the amount of the retainage. If no more than the retain-age, the trial court should dismiss the case for failure to exhaust administrative remedies, but if more than that amount, the trial court should proceed with the trial of the case. The Department should be required to amend its complaint to show whether or not it is claiming damages in excess of the retainage amount.

Reversed and remanded for further proceedings consistent with this opinion.

ERVIN and SHAW, JJ., concur.

      . It was a proceeding under the old administrative procedure act, Chapter 120, Florida Statutes (1973).

      . In the administrative proceeding reviewed by this Court as aforesaid, the hearing examiner found that the architect did not fulfill his responsibilities. See Biltmore Const. Co. v. Florida Dept., etc., supra. The Department filed the damage suit against both Biltmore and Watson and Company, Engineers, the architectural and engineering firm on the construction site. A summary judgment was entered in Watson’s favor on the ground that the statute of limitations had run. Thus, initially, the case was properly filed in circuit court regardless of whether the damage claim was for more or less than the amount of the retainage. The Department had no administrative remedy for damages against both Biltmore and Watson in the administrative dispute over the retainage. This, however, is no longer a consideration since Watson is not now a party defendant.


author: WENTWORTH, Judge.

text:
    DIVISION OF WORKERS’ COMPENSATION, DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, Appellant, v. James I. McKEE, James Cone and Ray Cralle, Appellees.
    No. AG-301.
    District Court of Appeal of Florida, First District.
    April 26, 1982.

      Michael J. Rudicell, Dept, of Labor and Employment Security, Tallahassee, for appellant.
    Leslie King O’Neal, of Markel, Scott, McDonough & O’Neal, Orlando, for appel-lees.
   WENTWORTH, Judge.

Appellant seeks review of an administrative order declaring invalid portions of proposed agency rules relating to medical fees governed by Florida’s Workers’ Compensation Act. We conclude that a § 120.-54(4)(a), Florida Statutes, administrative rule challenge, rather than a circuit court action as appellant suggests, was the proper method for challenging the proposed rules, and we further conclude that the hearing officer correctly determined that the proposed rules, as they relate to physical therapists’ fees, are invalid due to the absence of a § 120.54(2)(a), Florida Statutes, economic impact statement. The absence of such an economic impact statement may be harmless error if it is established that the proposed action will have no economic impact, or that the agency fully considered the asserted economic factors and impact, see Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla.1980); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2nd DCA 1979); however, these circumstances were not shown to exist in the present case. The absence of an economic impact statement is therefore grounds for invalidity of those portions of the proposed rules relating to physical therapists’ fees. See § 120.-54(2)(c). It is thus unnecessary for this court to consider, and we expressly decline to address, the appropriateness of the proposed state-wide maximum fee schedule for workers’ compensation medical payments.

The order appealed is affirmed.

ERVIN and SHIVERS, JJ., concur.

      . See § 440.13(3)(a), Florida Statutes.


text:
    Andrew J. ARNETTE, Appellant, v. FLORIDA STATE UNIVERSITY and the Career Service Commission of the State of Florida, Appellees.
    No. AG-476.
    District Court of Appeal of Florida, First District.
    April 26, 1982.

      Charles W. Dodson, of Holland & Knight, Tallahassee, for appellant.
    Gerald B. Jaski, Gen. Counsel, Florida State University, Arthur C. Wallberg, Asst. Atty. Gen., Tallahassee, for appellees.
   WENTWORTH, Judge.

This is an appeal from an order of the Career Service Commission dismissing, for untimeliness and lack of jurisdiction, an appeal for the recovery of lost wages.

After a predisposition conference at which appellant was orally informed that he would be suspended, he was notified by letter dated February 29, 1980, that he was suspended without pay from his position with Florida State University until the adjudication of a pending grand theft charge against him. The letter stated that he had a right to appeal to the Career Service Commission within twenty days of receipt of the notice. No appeal was taken from the suspension. On May 21, 1980, a directed judgment of acquittal was entered in the criminal action and appellant was reinstated at Florida State University the following day. Shortly thereafter, appellant and his attorney made oral inquiries regarding back pay, but were informed that none would be forthcoming. By letter dated March 17, 1981, appellant, through another attorney, requested back pay. This request was refused by the University on April 1, 1981, and appellant appealed to the Career Service Commission. After an initial hearing on the issue of jurisdiction, the appeal was dismissed because it was not filed within twenty days of the notice of suspension. This appeal followed.

Relying on McDaniel v. Career Service Commission, 379 So.2d 454 (Fla. 1st DCA 1980), appellant argues that the refusal to conduct a hearing on the merits was a denial of due process. In McDaniel, the employee had been suspended for thirty days because a criminal charge had been brought against him. The suspension notice informed him of his right to appeal and stated that extension of suspension until final disposition of the criminal charges would be requested. The suspension was subsequently extended indefinitely, although the extension was not achieved in compliance with the rules. The charges were nolle-prossed in December, 1978, and he was reinstated in January, 1979. His attorney then sought information from the employer regarding back pay. When the information was not provided, McDaniel filed an appeal with the Career Service Commission requesting that he be reinstated with back pay. The Career Service Commission found that it was without jurisdiction to hear the appeal. This court reversed, holding that because of the peculiar fact situation, denial of a hearing on the facts would deny him due process.

While there are similarities between McDaniel and the instant case, we hold that the differences are crucial so that the circumstances of this case do not render the denial of the appeal a denial of due process.

In this case, appellant was represented by counsel from the predetermination conference through this appeal. In fact, he relies heavily on his, and his counsel’s, testimony that after the predetermination conference they were under the impression that if he was exonerated of the criminal charges he would be reinstated with back pay. If they were in fact laboring under such an impression, the written notice of suspension, which specifically stated that it would be without pay, should have alerted them to the need to challenge the suspension. Appellant was promptly notified after he was reinstated that back pay would not be forthcoming, and almost a year elapsed between the notification and the date that he finally appealed.

The written notice of suspension in this case provided a clear point of entry to the appellate process by informing appellant that he was suspended without pay, that he had a right to appeal that suspension, and that he had twenty days in which to bring the appeal. McDaniel involved significant issues as to the effectiveness of the extension beyond the original thirty days which are not present here. On the contrary, any question regarding the indefinite period of suspension in this case was patent on the face of the notice and was a matter which could properly have been raised in a timely appeal to the Career Service Commission.

As to the contention that a timely appeal could have infringed appellant’s right against self incrimination, the Commission noted Florida Administrative Code Rule 22M-2.09, and correctly stated that ... no relationship or bearing exists between a criminal proceeding and a personnel disciplinary proceeding arising from the same facts and circumstances. Weisbrod v. Florida Career Service Commission, 375 So.2d 1102 (Fla. 1st DCA 1979); City of Miami v. Kellum, 147 So.2d 147 (Fla. 3d DCA 1962); State Department of H. R. S. v. Vernon, 379 So.2d 683 (Fla. 2d DCA 1980).

We therefore find no merit in appellant’s contention that an employee’s appeal of a suspension order will necessarily infringe his right against self incrimination.

Under the circumstances in this case appellant’s due process rights were not violated by the denial of his untimely appeal. The order is accordingly affirmed.

ERVIN and SHIVERS, JJ., concur.

      . Fla.Admin.Code Rule 22M-2.09 provides in part that:
      (1)The hearing shall be conducted in the manner provided by Chapter 120, F.S., and Section 22A-10.06, F.A.C. The presiding officer shall take whatever action is necessary to insure that the hearing is conducted in all equitable, orderly and expeditious manner. Ail parties shall abide by the presiding officer’s decisions, unless the presiding officer is overruled by a majority vote of the members present.
      (2) In the appeal hearing, the appealing employee has the right to refuse to testify; however, if the employee takes the stand he will be subject to examination on all matters in controversy.
      (3) The Commission, recognizing the burden of proof is upon the agency, and the absolute right of the employee to remain silent, will not draw any conclusion regarding the truth or falsity of the agency’s allegations based upon the employee’s not taking the stand in his own behalf.


author: THOMPSON, Judge.

text:
    STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and Allied Insurance Company, Appellants, v. Kenneth Vernon HANDY and the Division of Workers’ Compensation, Appellees.
    No. AH-25.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Rehearing Denied May 24, 1982.

      Summers Warden, Miami, for appellants.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellees.
   THOMPSON, Judge.

The employer and carrier (E/C) appeal a workers’ compensation order, contending that the Deputy Commissioner (Deputy) erred: (1) in denying the E/C’s petition for modification of a prior order awarding nursing services and (2) in awarding claimant’s attorney an excessive fee for his services in resisting the petition for modification. We agree that the Deputy erred in these respects, and that his order requires modification.

In 1973 claimant sustained a compensable injury which rendered him permanently totally disabled. In 1976 a Judge of Industrial Claims determined that claimant was in need of attendant nursing care services, and that such services were being furnished by claimant’s wife. Accordingly, by order dated February 5,1976, the Judge of Industrial Claims directed the E/C to pay claimant’s wife for her services, on the basis of two eight-hour shifts per day, seven days per week, at the rate of $27.00 per shift. This order was ultimately affirmed by the Florida Supreme Court in Handy v. Department of Agriculture and Consumer Services, 364 So.2d 722 (Fla.1978). In February 1980 the E/C filed the petition for modification which is at issue here, alleging mistake of fact and change in condition in that claimant did not require nursing services.

Three physicians testified concerning claimant’s present need for nursing services. Dr. Barry, an orthopedic surgeon, examined claimant and determined that he suffered advanced osteoarthritis, but that much of his symptomatology was feigned. Dr. Barry was of the opinion that claimant was not in need of any attendant nursing care services. Dr. Burbacher, another orthopedic surgeon, found that claimant had scoliotic deformity of the spine and chronic, severe muscle spasm in the low back. Dr. Burbacher was of the opinion that claimant would need some attendant care and assistance in obtaining food, in bathing, and in maintaining personal hygiene. He was of the opinion that claimant needed four to six hours of attendant care per day, but not on a daily basis. Dr. Burbacher felt that such part-time assistance could be rendered by a “visiting nurse” and that such assistance, in combination with the part-time assistance of claimant’s wife, would suffice to meet his needs. Dr. Gilbert, a general surgeon, testified that claimant had a probable herniated disc and that he needed 10 to 12 hours of attendant care per day, seven days per week.

Claimant’s wife testified that she assisted her husband on a 24-hour basis, but both she and the claimant admitted that a portion of her time was spent shopping, cooking, and performing other ordinary household services. These services, when performed for a claimant by a spouse or other family member, are considered gratuitous, and cannot form the basis of an award for attendant care services. Pan American World Airways, Inc. v. Weaver, 226 So.2d 801 (Fla.1969); Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980). The record in this case is devoid of evidence which could support an award of attendant nursing care services in excess of eight hours per day, and we accordingly modify the Deputy’s order to require the E/C to pay claimant’s wife for her services on the basis of one eight-hour shift per day, seven days per week, at the rate of $27.00 per shift.

We turn now to the E/C’s contention that the deputy erred in awarding a $20,000 fee to claimant’s attorney. We note that the only evidence in the record as to the amount of attorney’s time required to resist this petition for modification was the testimony of the E/C’s expert witness, who was of the opinion that preparation of the case should have taken “perhaps 20 hours.” Although this court has previously held that an award of attorney’s fees will not be reversed solely because it results in a high hourly fee, Okaloosa County Gas District v. Mandel, 394 So.2d 453 (Fla. 1st DCA 1981), we find the award in this case to be so patently excessive as to lead to the inescapable conclusion that the deputy not only failed to consider the amount of time and labor required, but also ignored the additional fee award criteria set out in Sections 440.34(l)(a) and (c), Florida Statutes:

[T]he deputy commissioner shall consider the following factors in each case and may increase or decrease the attorney’s fee if, in his judgment, the circumstances of the particular case warrant such action:
(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(c) The fee customarily charged in the locality for similar legal services.

The record in this case includes competent substantial evidence which could support an attorney’s fee award of no more than $4,000 and we therefore modify the order to grant an attorney’s fee in the amount of $4,000.00.

The order, as hereinabove modified, is AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    LINDSLEY HOME CARE CENTERS and Fred S. James & Co. of Florida, Inc., Appellants, v. Lucy E. FUSTER and the Division of Workers’ Compensation, Appellees.
    No. AD-98.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Rehearing Denied May 27, 1982.

      Summers Warden, Miami, for appellants.
    Michael D’Agostino, Miami, for appellees.
   MILLS, Judge.

The employer/carrier appeal an order finding the claimant temporarily totally disabled (TTD) and ordering payment of medical bills, costs, and attorney’s fees. We affirm in part and reverse in part.

In March' 1980, the claimant injured her right knee in a compensable accident. A tear of the lateral meniscus was surgically treated. She began feeling pain in her left knee and back. Although his testimony is not clear, the treating physician felt that a causal relationship existed between the accident and the subsequent pain. No expert evidence was presented as to the degree of the claimant’s disability. The claimant testified that the pain was too great for her to work full time and part-time work had been unobtainable.

Once again this Court is presented with a case in which the deputy commissioner relied on the claimant’s account of her injuries in answering the mixed question of medicine and subjective complaints of the degree of the claimant’s disability. It is established law that the deputy can so rely when the issue does not require medical expertise but rather lies within the actual knowledge of the claimant or is readily observable by lay people. See, Square G Const. Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 25 March 1982), and cases collected therein. The only issue is whether certain injuries are so observable. A claimant’s bare complaints of continued pain so that the claimant feels unable to work is not the sort of injury that is so observable, Gilbarco, Inc. v. LeRoux, 1031 So.2d 411 (Fla. 1st DCA 1 April 1982); Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981); Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981). Due to a lack of medical evidence of disability, the order is reversed and the cause is remanded for a determination of the claimant’s entitlement to temporary disability, if any, based on the claimant’s testing of her ability in the job market. Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). The existing record shall be used.

The claimant argues that the award of her attorney’s fees was authorized under Section 440.34(2)(c), Florida Statutes (1979). This issue is controlled by Ardmore Farms, Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981). The award of the claimant’s attorney’s fees is reversed.

We have reviewed the employer/carrier’s other arguments and find them to be without merit. In all other respects the order is affirmed.

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


text:
    JAMAR SPORTSWEAR, INC. and Hartford Insurance Group, Appellants, v. Martin MILLER, Appellee.
    No. AD-437.
    District Court of Appeal of Florida, First District.
    May 5, 1982.

      Israel Abrams of Abrams & Suskin, North Miami Beach, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.
   PER CURIAM.

The employer/carrier raises three points on appeal. We affirm on the first point and reverse as to the second two. •

Claimant’s evidence showed that he went to work alone on Saturday, June 23, 1979, to cut some sample patterns. As he pulled a heavy bolt of material out from the bin, he felt a twinge in his chest which became increasingly severe. He testified that he was unaccustomed to lifting such heavy rolls of material, as he normally delegated such heavy labor to others. The pain subsided briefly and then returned even more severely while he was cutting the material. He stopped work immediately and drove to his nearby residence where someone was available to drive him to the hospital. His attending physician diagnosed an acute myocardial infarction. On August 31, 1979, while relaxing in the Florida Keys, claimant suffered another heart attack. His treating physician on that occasion determined that the second attack was an extension of the first. His physician testified that claimant suffered 50% physical impairment as a result of the two attacks.

The carrier argues that the original attack is not compensable. We disagree. Claimant established by competent substantial evidence all of the elements essential to a compensable heart attack. Claimant testified that he was engaged in an identifiable strain to which he was unaccustomed, and his attending physician’s testimony was that his heart attack was causally related to the physical strain. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962).

The second point raised by the carrier is whether the deputy commissioner erred in awarding compensation for a 50% permanent partial disability which was not based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment as required by section 440.15(3)(a)(3), Florida Statutes (1979). We agree that the deputy’s ruling on this point was error. The order shows that the award was based on physical impairment alone, not loss of wage earning capacity. Section 440.15(3)(a)(3) requires that the Guides be used to determine the percentage of physical impairment. Once a diagnosis is made, 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. Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981).

The carrier’s third point concerns the deputy’s excusal of the noncompliance of the physicians and hospitals involved with the reporting requirements of section 440.13, Florida Statutes (1979). We also reverse on this point. The statute requires that doctors and hospitals submit a report of injury and treatment to the carrier within ten days of first treating a workers’ compensation patient. The deputy excused the reporting requirements because of his determination that the carrier had set up a “wall of ignorance.” The deputy’s excusal is for the wrong reason, because the wall of ignorance principle is inapplicable to the reporting requirements of section 440.13. The deputy has failed to make the requisite finding of good cause to support the excu-sal.

AFFIRMED in part, REVERSED in part, and REMANDED to the deputy commissioner for the purpose of having claimant’s doctor relate his disability rating to the AMA Guides, and for the deputy’s determination of whether there is good cause to excuse the reporting requirements.

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


text:
    The WASH HOUSE and South Carolina Insurance Company, Appellants/Cross-Appellees, v. Linda F. TUCKER, Appellee/Cross-Appellant.
    No. AF-18.
    District Court of Appeal of Florida, First District.
    May 5, 1982.

      Bruce R. Raster of McClellan, Raster & Vostrejs, P. A., Ocala, for appellants/cross-appellees.
    Terence J. Rann of Barton, Cox & Davis, Gainesville, for appellee/cross-appellant.
   PER CURIAM.

Appellants seek review of an order finding the claimant/appellee, Linda F. Tucker, to have sustained a 5% permanent impairment as a result of her industrial accident, which occurred on April 17, 1980. Appellants claim that there is no evidence to suggest that her impairment rating is based upon the American Medical Association’s Guides to the Evaluation of Permanent Impairment, as required by Section 440.15(3), Florida Statutes (1979). However, we decline to reach this issue.

Although the deputy commissioner did make a finding that the claimant had sustained a 5% permanent partial disability to the body as a whole, his order does not reflect an award of workers’ compensation benefits. Therefore, the order is not a final order. The applicable procedural rules, Rules 9.030(b)(1)(B) and 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, do not authorize direct review by this court of non-final orders of a deputy commissioner. See United States Fidelity and Guaranty Co. v. Sloan, 410 So.2d 549 (Fla. 1st DCA, 1982). Consequently, we dismiss the employer/carrier’s appeal for lack of jurisdiction, because it attempts to appeal a nonap-pealable interlocutory order.

Appellee’s timely cross-appeal as to the propriety of an award of temporary disability benefits after June 1, 1980, is cognizable by this court as a final order denying the claim for these benefits. Because there is substantial competent evidence to support the deputy commissioner’s determinations in this matter, we decline to reweigh the evidence. Croft v. Pinkerton-Hayes Lumber Co., 386 So.2d 535, 537 (Fla.1980).

Accordingly, appellee’s cross-appeal is AFFIRMED, and appellants’ direct appeal is DISMISSED for lack of jurisdiction. Our dismissal is without prejudice to review of the order in the event of appeal from a final order awarding permanent impairment or wage loss benefits pursuant to Section 440.15(3), Florida Statutes (1979).

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    Paula M. McCAY, Appellant, v. William James McCAY, Appellee.
    No. AF-82.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Robert B. Staats of Law Office of Robert B. Staats, P.A., Panama City, for appellant.
    Joel M. Cohen of Cohen & Westberry, P.A., Pensacola, for appellee.
   PER CURIAM.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.

WENTWORTH, J., concurring specially with opinion.

WENTWORTH, Judge,

specially concurring.

Although I agree with the conclusion for affirmance of the result-reached below, I would find that the award to appellant of $100 per month for one year should not have been classified as rehabilitative alimony, the purpose of which is to provide for payments during a period of adjustment toward self support at the standard of living established during the marriage. Robinson v. Robinson, 866 So.2d 1210 (Fla. 1st DCA 1979). The wife in this case was 68 years old. She had apparently, throughout the marriage, been self supporting. The award is accordingly not rehabilitative in character. On the contrary, the final judgment specifically states that the purpose of the award is to assist the wife in liquidating mortgages presently encumbering her separate property. I would therefore affirm the award as lump sum alimony, payable in installments, but note that the trial court erred in calling it rehabilitative alimony. See Yandell v. Yandell, 39 So.2d 554 (Fla.1949).


text:
    Marie Catherine SHEPHERD, Appellant, v. Thomas Lee SHEPHERD, Appellee.
    No. AF-97.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Lyman T. Fletcher of Fletcher & Fletcher, Jacksonville, for appellant.
    No appearance for appellee.
   WIGGINTON, Judge.

In this action for dissolution of marriage, we find no error in the trial court’s division of property and award of alimony. However, the record indicates the appellant’s physical condition may significantly deteriorate, and the appellee’s ability to pay may significantly increase. Accordingly, the final judgment is amended to include a retention of jurisdiction by the Circuit Court to consider the possibility of alimony at a future date which may be dictated by changes in the circumstances of the parties. See Nichols v. Nichols, 304 So.2d 497 (Fla. 1st DCA 1974); Smith v. Smith, 406 So.2d 71 (Fla. 2d DCA 1981).

As amended, the final judgment is affirmed.

JOANOS and THOMPSON, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    VIKING SPRINKLER COMPANY and Lumbermens Mutual Casualty Company, Appellants, v. Martin J. THOMAS, Appellee.
    No. AF-98.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Steven A. Rissman, Cooper & Rissman, Orlando, for appellants.
    Stephen J. Wein, Battaglia, Ross, Hastings, Dicus & Campbell and Donald C. Anderson, St. Petersburg, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal issues relating to determination of average weekly wage, and the award of rehabilitation benefits. Appellants maintain that the deputy commissioner erroneously included a $90.00 weekly expense allowance in his computation of average weekly wage, and that he erroneously approved rehabilitation in the form of a machine-shop training course for claimant, as opposed to “specialized job placement” services offered by the E/C. We affirm.

The claimant, 32-years of age, sustained a compensable accident while employed as a pipe fitter, when a pipe broke loose from a wall, struck him in the face, and caused him to fall from a ladder onto the floor about twenty-five feet below. He sustained numerous injuries, those of lasting significance being two compression fractures of the lumbar vertebrae. After medical care he was discharged with instructions that he should be capable of light work, without heavy lifting. He was assigned a 10% permanent partial disability of the body as a whole.

As above noted, the deputy commissioner found that the $90.00 weekly expense allowance received by claimant was properly considered as a part of his weekly wages. The evidence discloses that the additional sum was paid while the claimant was away from Tampa, which was “all the time,” according to his testimony. This additional sum was paid for daily living expenses, including room and meals, and partly for mileage. No accounting for these expenses, nor the expenditure of the $90.00 weekly allowance, was required. The same amount was paid to each employee, regardless of whether he drove his own vehicle or rode in another employee’s vehicle. An employee driving his own truck and carrying materials was paid extra for the use of the truck. We conclude that the deputy commissioner’s treatment of the expense allowance comports with the statutory definition of “wages” found in Section 440.02(12), Florida Statutes (1979).

Turning next to the rehabilitation issue, we observe initially that the E/C admit their responsibility under Section 440.49, Florida Statutes (1979), to provide rehabilitation, and to provide it quickly. However, they assert that they discharged this duty by employing a private rehabilitation coun-selling firm to place the claimant in suitable employment as soon as possible. The E/C argue that this offer of “specialized job placement,” which one of their experts defined as placement in employment that is appropriate, “depending on the limitations or specific needs of the employee,” is the equivalent of “rehabilitation” under the statute. They contend also that the method of rehabilitation chosen by the E/C should prevail over the desires of the claimant to obtain training qualifying him for a higher level occupation than he would be qualified for without training. Finally, the E/C contend that the E/C should have the right of choice in selection of the rehabilitation program they consider to be appropriate for the claimant, and the right to select the rehabilitation service or facility through which rehabilitation will be provided. In this connection they analogize the selection of rehabilitation programs and providers with the selection of medical care providers, and they argue that the E/C should have the same right of “first choice” in rehabilitation matters.

We decline to adopt the E/C’s views regarding rehabilitation, with exception of their acknowledgement of their obligation to provide it, because these views, as above outlined, are fundamentally at odds with the concept of “rehabilitation” as we think it is envisioned by Florida’s workers’ compensation law. The statute (Section 440.-49(l)(a)), requires the E/C to provide rehabilitation in the form of “appropriate training and education,” and it speaks further of “vocational education,” and “vocational rehabilitation” of injured employees. Subsection (c) of Section 440.49(1) makes further reference to “appropriate training or education,” and subsection (d) provides for “proper rehabilitation services” to be extended over a period of twenty-six to fifty-two weeks. Therefore, although we do not demean the carrier’s prompt action in assigning a vocational rehabilitation counselling firm to work with the claimant, we cannot accept the notion that a “specialized job placement” service is synonymous with rehabilitation. Finding a job for an injured worker, however helpful and beneficial, cannot be equated with “training and education.”

Furthermore, finding a suitable job pre-supposses the existence, upon the claimant’s part, of the ability to obtain and perform employment providing an income “equal to” his pre-injury earnings. Section 440.-49(l)(a). If the claimant has such ability, then rehabilitation would be unnecessary.

The evidence before the deputy commissioner focused upon the necessity for, and the suitability of the rehabilitative program undertaken by the claimant. The E/C’s rehabilitation experts testified that claimant was not in need of rehabilitation, and it is clear both from the E/C’s argument here and from the testimony below, that the E/C did not offer “rehabilitation.” The rehabilitation and counselling firm employed by the E/C was assigned for the purpose of providing specialized job placement, rather than rehabilitation. Despite this limitation in the assignment, upon the claimant’s initial contact with the rehabilitation counsellors employed by the E/C he was told to contact Pinellas Vocational-Technical Institute (PVTI) to see if he could qualify for the machine-shop training course, which he did, and was accepted. Some sixty days after the claimant’s initial contact with the E/C’s rehabilitation coun-sellors, one of the counsellors visited the claimant’s home, to discuss with him the prospects for his acceptance of the “specialized job placement” service offered by the carrier, rather than the course of rehabilitative training undertaken by the claimant. When the claimant declined such specialized job placement service, and expressed his desire to continue in the rehabilitative training program he had already undertaken at PVTI, no further action was taken by the counselling firm. No job was actually located for the claimant. Although one of the counsellors employed by the E/C testified that in his opinion he could have located a job for the claimant paying $200.00 per week, or even $245.00 per week, he doubted that he would be able to obtain employment for the claimant at $290.00 per week, the amount of claimant’s pre-injury wages when his $200.00 base pay and the expense allowance are combined. Further support of the necessity for rehabilitation is found in the claimant’s testimony concerning his unsuccessful job search conducted prior to his enrollment at PVTI. Appellants have failed to demonstrate error in the deputy commissioner’s finding that the claimant’s injury would preclude him from earning wages equal to the wages earned prior to the injury.

As for the suitability of the machine-shop rehabilitative training program, we observe that the rehabilitation specialists for both sides reviewed the claimant’s medical reports and administered an impressive battery of tests relating to the claimant’s vocational aptitude and abilities. There was agreement by the experts on both sides that the machine-shop training program was appropriate for the claimant. Thus, the deputy commissioner had before him ample evidence upon which to base his determination as to the suitability of the rehabilitative program.

Finally, with respect to the E/C’s assertion of a right of “first choice” in the selection of rehabilitative providers and programs for the claimant, we fail to find any basis for the assertion of such a right in the statute or in the uses and purposes it is designed to serve. Among the statutory rights conferred upon the E/C is definitely not included the right to choose, in behalf of the injured claimant, the occupation to be followed by him when his own freedom of choice and ability to perform a job have been impaired as a result of an industrial accident. As the evidence in this case amply demonstrates, the choice of suitable employment for an injured employee involves many factors, not the least of which are the employee’s aptitude, interest, desire, or “motivation” to engage in a certain type of work. The same rationale was employed by this court in Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982), and expressed in the court’s admonition (409 So.2d at 1203, 1204): “To refuse rehabilitation benefits because of the availability of any employment, no matter how ill-suited to the particular individual, would be counter to the statutorily expressed goal of rehabilitation — to return the individual to ‘suitable gainful employment.’ ” Should this court agree that the E/C is entitled to furnish its own form of “rehabilitation,” if this case may be used as an example, rehabilitation would soon become more of a myth than a reality.

The order appealed is AFFIRMED.

MILLS and SHAW, JJ., concur.

      . The deputy commissioner in his order made specific reference to this lapse of sixty days “between effective contacts of the rehabilitation specialists.” In fairness, we surmise that this undue delay was attributable, at least in part, to the fact that the counsellor with whom the claimant initially consulted left the firm shortly after the interview with the claimant.

      . The experts testifying for both sides were shown to be well-qualified. The claimant’s expert witness, Dr. Harold H. Smith, Jr., for example, is the holder of a Doctor of Philosophy Degree in Clinical Psychology, has special training in the area of rehabilitative testing, and has provided rehabilitative services to the Department of Health and Rehabilitation and Vocational Rehabilitation, in addition to his private practice in the fields of psychology and vocational rehabilitation.


text:
    Dr. Frank A. STUART, Appellant, v. Robert JONES, Jr., Appellee.
    No. AG-76.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Robert S. Lyons, Fort Lauderdale, for appellant.
    J. D. Lewis, III, Stuart, for appellee.
    Harry D. Robinson and Edna L. Caruso, West Palm Beach, for appellee INA.
   WIGGINTON, Judge.

This workers’ compensation appeal presents issues involving the determination of maximum medical improvement and average weekly wage, the applicability of the Act’s agricultural labor exemption, and an alleged lapse in the appellant’s workers’ compensation coverage.

We affirm the deputy commissioner’s determination that the claimant was not exempt from the Workers’ Compensation Act under the agricultural labor provision of section 440.02, Florida Statutes (1977). See Miranda v. Southern Farm Bureau Casualty Insurance Co., 229 So.2d 232 (Fla.1970).

We also affirm the deputy’s finding that the Workers’ Compensation insurance policy issued to the employer by the Insurance Company of North America did not include the claimant as a covered risk on the day of the accident. However, we cannot approve the comment, expressed as dictum in the deputy’s order, that the employer’s subsequent compensation carrier is similarly free from responsibility. The record contains insufficient evidence for such a finding, so the order should not be construed as deciding liability between the employer and subsequent carrier.

We reverse the deputy’s reservation of jurisdiction to determine the average weekly wage, because neither party presented good cause to modify their pretrial stipulation to an average weekly wage of $150. See Stone v. A & G Plastering, et al., 404 So.2d 1183 (Fla. 1st DCA 1981).

Finally, we reverse the deputy’s conclusion that the claimant has not reached maximum medical improvement as appellee confesses error. We remand so the deputy may determine the date of MMI, taking additional evidence, if necessary.

Accordingly, the order is affirmed in part, reversed in part and remanded.

JOANOS and THOMPSON, JJ., concur.


text:
    Horace O. LOGAN, Appellant, v. FLORIDA PAROLE and PROBATION COMMISSION, Appellee.
    No. AJ-186.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Horace O. Logan, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Florida Parole and Probation Commission moves to dismiss this appeal on the grounds that the notice of appeal was not timely filed.

On December 3, 1981, the Commission entered its final order establishing appellant’s presumptive parole release date. In accordance with Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1 DCA 1981), appellant timely filed a notice of appeal on December 28,1981. The notice stated that appellant was appealing to the Third District Court of Appeal. On December 29,1981, the Third District issued its opinion in Roberson v. Florida Parole and Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981), holding that an appeal pursuant to § 120.68 may not be taken from the Commission’s final order establishing a presumptive parole release date. On January 11, 1982, the Third District issued an order dismissing Logan’s appeal, citing to Roberson, supra. Immediately thereafter, appellant filed another notice with the Commission stating he appealed to the First District Court of Appeal and that he “would re-file this appeal in the appropriate court of appeal, First District, as directed by Roberson, supra.” Appellant also filed a third notice, entitled “Amended Notice of Appeal”, seeking review in this Court.

The question is whether the second and third notices, which were not filed within 30 days of the final order, should be considered as amendments to the original notice, which was timely filed, and thus provide this Court with appellate jurisdiction.

The Florida Rules of Appellate Procedure provide that (1) “[i]f a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court”, Fla.R.App.P. 9.040(b); (2) “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ... ”, Fla.R.App.P. 9.040(c); and (3) “[a]t any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits”, Fla.R.App.P. 9.040(d). These provisions, based on Article V, Section 2(a), of the Constitution of the State of Florida, are meant to ensure that no person is deprived of the right to have his cause heard due to technical traps in pleadings or procedure. Of course, the provisions are not meant to excuse the failure to comply with the rules of procedure and they cannot be invoked to vest jurisdiction in a court when the jurisdictional prerequisites have not been met.

In this case, appellant fully complied with the appellate rules of procedure. He fulfilled the jurisdictional prerequisite by timely filing his notice of appeal in the lower tribunal. He clearly indicated that he sought review of the Commission’s order setting his presumptive parole release date. However, he also clearly indicated that he was invoking the jurisdiction of the Third District Court of Appeal. It was not until the Third District acted on his appeal that Logan attempted to file a notice directed to this Court.

Although we sympathize with appellant’s plight, we must dismiss this appeal. This case does not involve a defect in the notice of appeal which is subject to correction by amendment. See, e.g., Ratner v. Miami Beach First National Bank, 362 So.2d 273 (Fla.1978); Bowen v. Bowen, 352 So.2d 166 (Fla. 1 DCA 1977). The notice of appeal was not defective. The notice was directed to the Third District Court of Appeal and jurisdiction over this cause vested in that court. Appellant cannot now attempt to invoke the jurisdiction of this Court by amending his original notice simply because he was not satisfied with the disposition of his appeal by the Third District. Although the appellant could have originally appealed to this Court or the Third District, having picked the forum, appellant was bound by its decision and could seek relief from that decision only by the appropriate appellate process. Cf., Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975).

Therefore, the Commission’s motion is granted and this appeal is DISMISSED.

IT IS SO ORDERED.

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


text:
    Roberto LOPEZ, Appellant, v. FLORIDA PAROLE and PROBATION COMMISSION, Appellee.
    No. AK-24.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Roberto Lopez, appellant pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as a notice of appeal and appellant’s brief. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1982). The action of the Florida Parole and Probation Commission is affirmed.

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


text:
    SELECT INTERNATIONAL, INC., f/u/b Continental Insurance Company, Appellants, v. John STAPLES and Texas Farmers Insurance Company, Appellees.
    No. 81-1698.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    James B. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for appellants.
    Michael S. Rywant and David R. Tyrrell of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees.
   PER CURIAM.

Affirmed. See Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973), and Smith v. Ryan, 142 So.2d 139 (Fla. 2d DCA 1962).

HOBSON, A. C. J., and OTT and RYDER, JJ., concur.