author: LARRY G. SMITH, Judge.

text:
    PUBLIC HEALTH TRUST/JACKSON MEMORIAL HOSPITAL, Appellant, v. Rosa Lee COOPER, Appellee.
    No. AM-243.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Marily Strauss, Asst. County Atty., Miami, for appellant.
    Marvin J. Kristal, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/self-insured appeals an order of the deputy commissioner awarding temporary total disability compensation benefits, payment of certain medical bills, and attorney’s fees. We agree that the deputy’s award of attorney’s fees was improper and must be reversed. In all other respects, the order is affirmed.

Section 440.34(2), Florida Statutes (1979), provides for the award of attorney’s fees in three instances, none of which occurred here. No evidence was presented establishing bad faith on the part of the employer/self-insured and the employer/self-insured did not deny that claimant suffered a compensable injury, therefore paragraphs (b) and (c) of Section 440.34(2) are inapplicable. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Nevertheless, claimant contends that Section 440.34(2)(a) is applicable even though he filed á claim for temporary disability as well as a claim for medical benefits, since the claim for temporary benefits was essentially part of his claim for medical benefits. Landers Construction v. Delauder, 417 So.2d 989 (Fla. 1st DCA 1981).

However, claimant misapprehends our decision in Landers. In Landers, the claim was for “Authorization for surgery by Dr. Ronald Lakusiewicz; continuing temporary total disability after said surgery; hospital expenses for said surgery; and any and all related medical expenses ...” This court allowed a fee reasoning that the inclusion of a claim for “continuing temporary total disability benefits after said surgery” was part of claimant’s essential medical care and did not disqualify the claim under Section 440.34(2)(a). In this case, claimant filed a separate claim for temporary total disability benefits to begin January 12, 1981, a date which preceded his hospitalization and surgery for which a separate claim for medical benefits was filed. Hence it cannot be said that the claim for temporary total disability was part of claimant’s essential medical care. See, Gunn’s Quality Glass v. Strode, 425 So.2d 73 (Fla. 1st DCA 1982), opinion filed December 16, 1982.

Accordingly, that portion of the deputy’s order awarding attorney’s fees is REVERSED.

ERVIN and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Hillsborough County Governmental Employees Association, Inc., and Communication Workers of America, Local 3178, Appellees.
    No. AI-484.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.

      E. John Dinkel, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Robert D. Hall, Jr., of Alley & Alley, Tampa, for amicus curiae Pinellas County Bd. of County Com’rs.
   ORDER ON REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE

PER CURIAM.

This is an appeal from a final order of the Florida Public Employees Relations Commission (PERC) certifying the Hillsborough County Government Employees Association (HCGEA) as the exclusive bargaining representative for certain county employees. Pinellas County was granted leave to appear as amicus curiae.

In the course of the proceedings below, the petition for certification was challenged on the grounds that HCGEA had misrepresented its affiliation status in PERC’s registration files and therefore was not properly registered. In its final order PERC found “... that while there is a relationship between HCGEA and either the FPBA or the HCPBA, there is no evidence that the HCGEA is affiliated with either organization in any legal sense which casts doubt upon the validity of the HCGEA’s registration license.”

In the appendix to its amicus brief, Pinel-las County included portions of the record in a case which was before the local Pinellas County PERC where HCGEA’s registration was revoked because of its failure to disclose its affiliation status. Pinellas County requests the Court take judicial notice of the county PERC record and decision pursuant to Section 90.202, Florida Statutes.

The Commission moves to strike the portions of the appendix containing the Pinel-las County PERC record on the grounds that (1) the county record was not submitted to PERC in the instant case and the Pinellas County PERC relied upon facts that were not before the Florida PERC in this proceeding; (2) the evidence code sections relating to judicial notice were not meant to apply to an appellate proceeding but were intended to authorize a trial court judge to take judicial notice of the specified matter; (3) Florida Rule of Appellate Procedure 9.220 allows “other authorities” to be included in the appendix but the Pinellas County PERC record is not “other authority”.

Pinellas County responds that judicial notice is requested not to raise factual matters but merely to limit the impact of the “no evidence” statement in the final order on appeal to the record in this case and to reflect that there were differences in the evidence considered by the two agencies. Pinellas County argues, citing to Section 90.202(6), that judicial notice is appropriate because the Pinellas County PERC order is currently on appeal to the Second District Court of Appeal and the matters in the appendix are portions of the record before that court. Lastly, Pinellas County asserts that the disputed portion of the appendix is properly included in the appendix as “other authority”.

Because Section 90.203 states that a court shall take judicial notice of any matter in Section 90.202 when properly requested, we must determine whether Section 90.203 applies to appellate proceedings.

Section 90.203, Florida Statutes (1981), is part of the Florida Evidence Code. Section 90.103(1) states that the Florida Evidence Code shall apply “... to the same proceedings that the general law of evidence applied to before the effective date of the code.” The general law of evidence did not apply to appellate proceedings prior to the effective date of the Code. An appeal has never been an evidentiary proceeding; it is a proceeding to review a judgment or order of a lower tribunal based upon the record made before the lower tribunal. An appellate court will not consider evidence that was not presented to the lower tribunal because the function of the appellate court is to determine whether the lower tribunal committed error based on the issues and evidence before it. See Tyson v. Aikman, 159 Fla. 273, 31 So.2d 272 (Fla.1947); Seashole v. F & H of Jacksonville, Inc., 258 So.2d 316 (Fla. 1st DCA 1972).

We therefore hold that The Florida Evidence Code does not apply to appellate proceedings, and we are not bound by Section 90.203 to take judicial notice of those matters listed in Section 90.202.

Although appellate courts may, when appropriate, take judicial notice of their own records, and such judicial notice is mandatory under certain circumstances, we have discovered few cases in which an appellate court has found it permissible to take judicial notice of the records of another court in a totally separate and distinct case. Numerous cases have held that an appellate court may not take judicial notice of the record in a separate proceeding. In Atlas Land Corporation v. Norman, 116 Fla. 800, 156 So. 885 (Fla.1934), the Supreme Court explained the reasons why such judicial notice would not be taken.

The circuit court whether sitting as a court of law or as a court of equity, is a court of record. As such, its judgments or decrees are to be supported, as well as tested, by what its record in the particular case may show, not by what its records at large may disclose. This is necessarily so because, if the rule were otherwise, the correctness of a particular judgment or decree when brought in question on an appeal to an appellate court might be made to depend on some secret knowledge of the judge or chancellor which, as to the parties on the appeal, might amount to a matter in pais in so far as the record of the cause being considered on the appeal is concerned. See Bouguille v. Dede, 9 La.Ann. 292, where the Supreme Court of Louisiana held that an appellate court should not consult nor take judicial notice of the contents of a record not made a part of the record of the case being appealed by being made a part of such record at the hearing or trial in the court of first instance.
Cases must be made up before the court of first instance, and the facts upon which they are based brought up properly in the record of the case being appealed; otherwise a right might be affected by a record previously covered by the dust of the ages, instead of having the controversy respecting it determined upon the record made up in the court of first instance in order to arrive at the judgment or degree being appealed from.

In Department of Revenue v. Young America Builders, 358 So.2d 1096 (Fla. 1st DCA 1978), this Court specifically stated that a district court “... may not take judicial notice of the contents of files in other courts.”

Based on the foregoing authority, we conclude that this Court may not take judicial notice of the records of the Second District Court of Appeal in the Pinellas County PERC case and deny the request to take judicial notice. We also find that the disputed portions of the appendix are not “other authority” that can properly be included in the appendix pursuant to Rule 9.220, Fla.R.App.P. Therefore, the Commission’s motion to strike is granted and the portions of the appendix containing the record of the Pinellas County PERC case which is not in the record on appeal in this case and any references to that part of the appendix in Pinellas County’s brief are stricken.

McCORD, MILLS and SHIVERS, JJ., concur. .

      . We do not here decide whether the procedural portions of Sections 90.203 and 90.204 apply to the appellate courts. See In Re Florida Evidence Code, 372 So.2d 1369 (Fla.1979).

      . See e.g., Foxworth v. Wainwright, 167 So.2d 868 (Fla.1964); Irvin v. Chapman, 75 So.2d 591 (Fla.1954); Collingsworth v. Mayo, 37 So.2d 696 (Fla.1948).

      . See Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976) (on second appeal, district court must take judicial notice of opinion as well as record in original appeal).

        . See Mitchell v. Gillespie, 161 So.2d 842 (Fla. 1st DCA 1964) (Supreme Court record may be consulted as an aid in interpreting Supreme Court’s published opinion; however, dissent notes that reference to that record in a brief or opinion, rather than the decision proper “is totally incompatible with ancient standards of appellate practice”.)


author: BOOTH, Judge.

text:
    William E. ATWATER and United Services Automobile Association, Petitioners, v. GULF MAINTENANCE AND SUPPLY, INC., Respondent.
    No. AK-16.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Fred M. Johnson of Fuller & Johnson, Tallahassee, for petitioners.
    James J. Richardson of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for respondent.
   BOOTH, Judge.

This cause is before us on a petition for writ of common law certiorari to review an order of the Circuit Court for Leon County, acting in its appellate capacity. Petitioners request that we quash the decision of the Circuit Court upholding a final judgment from the County Court for Leon County in a suit for damages arising from an automobile accident.

On October 13, 1978, an automobile owned by William E. Atwater and insured by United Services Automobile Association, petitioners, was involved in an automobile accident in which a truck owned by Gulf Maintenance and Supply, Inc., respondent, was damaged. Respondent’s suit for damages arising from the accident was tried without a jury on April 28, 1981.

Prior to hearing testimony, the trial judge ruled that evidence would be limited to the fair market value of respondent’s truck immediately prior to the accident. The court’s ruling was based upon the first paragraph of a letter dated July 2, 1980, from petitioners’ attorney to respondent’s attorney, which is as follows:

Dear Mr. Richardson:
I am in receipt of your answers to my interrogatories. Based upon your client’s responses, it appears that our only disputed issue involves the fair market value of the truck immediately prior to the accident. Certainly this subjective determination by our respective witnesses should allow some room for negotiation.
Following the accident, we secured three evaluations. They were: $1,199, $1,150, $1,250 respectively. Obviously, our offer of settlement is based upon the appraisals, less your client’s deductible.
Prior to my taking the deposition of your expert witness, I would like to once again attempt to settle this case. Now that we have limited the area of dispute, hopefully we can make some progress.
I have scheduled the deposition of Guy Revell for August 6, 1980, at 10 a.m. I look forward to hearing from you prior to that date.
Very truly yours,
Fred M. Johnson

The trial court held that the first paragraph of the letter was an admission of fact which was binding on the petitioners. In addition, the court ruled that all matters evidenced by any documents or other information in the possession of petitioner’s attorney prior to the date of the letter were deemed admitted. In conformity with that ruling; the court limited the evidence to testimony respecting the fair market value of the truck prior to the accident, stating into the record:

THE COURT: Then right or wrong — and it won’t be the first time I have been wrong, if I am — I’m going to rule that the letter from Mr. Johnson to Mr. Richardson inasfar as the first paragraph states that the only disputed issue involved is the fair market value of the truck immediately prior to the accident that I will restrict the testimony before this Court to that matter and will permit the introduction of the bills and [sic] Mr. Johnson’s possession as of July 2nd, 1980, to stand true as presented.
MR. FARRELL: Your Honor, for the record, I would like to object to the Court [sic] and Mr. Richardson [sic] using that letter for that purpose. I think it is clearly with respect to settlement negotiations, and I don’t think that is admissible. I would object on those grounds. Thank you, Your Honor.

Contrary to the trial court’s ruling, the first paragraph of the letter between counsel is part-and-pareel of the settlement negotiations between the parties and cannot be severed for the purpose of admissibility. Under Florida law, settlement offers made while a controversy is pending are inadmissible. Section 90.408, Florida Statutes; Mutual Benefit Health & Accident Association v. Bunting, 133 Fla. 646, 183 So. 321 (1938); Hill v. City of Daytona Beach, 288 So.2d 306 (Fla. 1st DCA 1974); Allstate Insurance Company v. Winnemore, 413 F.2d 858 (5th Cir.1969) (applying Florida law). The County Court’s ruling, admitting into evidence a letter involving settlement negotiations, was erroneous; the Circuit Court’s affirmance of that ruling was a departure from the essential requirements of law.

Accordingly, the petition is granted, the decision of the Circuit Court is quashed, and this cause is remanded with instructions to remand to the County Court for proceedings consistent herewith.

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

      . Transcript of Proceedings, p. 22.


author: WENTWORTH, Judge.

text:
    Johnny Diamond HELTON, Appellant, v. STATE of Florida, Appellee.
    No. AK-480.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order whereby he was convicted and sentenced for two counts of unlawful possession of a controlled substance. We find that appellant has failed to present any point of reversible error, and we therefore affirm the order appealed.

Appellant contends that the state failed to establish a proper “chain of custody” as a predicate for the admission of demonstrative evidence. However, while the chain of custody shown was somewhat imprecise, there is no indication that the evidence was tampered with or otherwise altered and it was therefore not error to admit the exhibits into evidence. See Robinson v. State, 325 So.2d 427 (Fla. 1st DCA 1976); also see Stevens v. State, 245 So.2d 92 (Fla. 1st DCA 1971). We also note that defense counsel did not pursue any cross examination on this issue or otherwise explore the discrepancy in the state’s evidence.

Appellant also contends that pros-ecutorial comment during closing argument infringed appellant’s constitutional protection against self-incrimination, thereby requiring a new trial. Comment upon the defendant’s failure to testify is of course improper. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), reh. denied 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730. However, prosecuto-rial comment upon a general lack of defense evidence is permissible. See Smiley v. State, 395 So.2d 235 (Fla. 1st DCA 1981); also see Crook v. State, 391 So.2d 362 (Fla. 1st DCA 1980). We find that the comment in the present case, by way of reply to defense counsel’s closing argument, does not impermissibly infringe upon appellant’s right against self-incrimination.

Accordingly, the order appealed is affirmed.

McCORD and BOOTH, JJ., concur.

      . The state’s evidence involved a discrepancy regarding the identifying number of the locker in which the evidence was placed and subsequently retrieved.

      . During closing argument defense counsel noted that only an undercover police officer had testified and that the state had not submitted any testimony from other persons who were present during an alleged drug transaction involving appellant. The prosecutor replied during his closing argument by indicating that one of the persons who was present is a friend of appellant and would not testify, and the prosecutor further stated that “Johnny Helton [the appellant], is he going to be here to testify for the state? Certainly not.” The remark, in context, is not directed to the defendant’s silence but only to the obvious predictability of a defendant not testifying for the state. See David v. State, 369 So.2d 943 (Fla.1979), as to inapplicability of the harmless error doctrine when a comment is fairly susceptible of being regarded by the jury as a reference to defendant’s failure to testify.
      While we have determined that such a comment, in the circumstances of this case, does not require a new trial, we note that such remarks are ill-advised and we do not condone the choice of that prosecutorial argument.


text:
    ESTECH GENERAL CHEMICALS CORPORATION and Fred S. James & Company of Florida, Inc., Appellants, v. Bobby W. GRAHAM, Appellee.
    No. AL-262.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.

      John K. Vreeland, of Lane, Trohn, Bertrand & Williams, Lakeland, for appellants.
    Richard R. Roach, Jr., of Woods, Murray & Roach, Lakeland, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order which does not dispose of all matured issues which were in controversy and submitted for the deputy’s adjudication. While such an order is patently interlocutory and not reviewable by appeal, see Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982), we grant review under our certiorari jurisdiction pursuant to Fla.R.App.P. 9.030(b)(2)(A).

A deputy commissioner must adjudicate all issues which are presented and ripe for disposition. See Washington Square v. Bourne, 408 So.2d 809 (Fla. 1st DCA 1982). In the present case issues relating to the attainment of maximum medical improvement, and entitlement to permanent wage-loss benefits, were raised in the claim for compensation and the pre-trial stipulation. During the course of the hearing the deputy indicated his intention to reserve jurisdiction in this regard. Although the deputy subsequently stated that he would rule on the wage-loss issue, the order in this case contains no express finding as to either the attainment of maximum medical improvement or entitlement to permanent wage-loss benefits. Counsel for employer/carrier thereafter requested an amended order expressly addressing these issues, but the record on appeal suggests that the deputy never responded to this request. In these circumstances failure to rule on such issues as were matured and presented for adjudication is a departure from the essential requirements of law.

The cause is accordingly remanded with directions that the deputy enter an order addressing the issue of whether claimant has attained maximum medical improvement and whether permanent wage-loss benefits are due. Such remand is without prejudice to the parties’ ability to obtain review of other issues which are now inappropriately presented for our consideration; such review may be sought by appeal of a final order disposing of all matured issues.

McCORD and BOOTH, JJ., concur.


author: JORGENSON, Judge.

text:
    Rosa CLAY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-353.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Jan. 20, 1983.

      Bennett H. Brummer, Public Defender and Kendall B. Coffey, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT and JORGENSON, JJ., and J. TILLMAN PEARSON (Ret.), Associate Judge.
   JORGENSON, Judge.

Rosa Clay appeals from a judgment and sentence imposed following a jury verdict finding her guilty of murder in the first degree. We find merit to her contention that the state failed to prove beyond a reasonable doubt the issue of premeditation and consequently we reverse the conviction and sentence for first degree murder and remand to the trial court for entry of a judgment and sentence for the crime of second degree murder.

The evidence adduced at trial reflects that Rosa Clay, a seventeen-year-old girl, had a stormy relationship with A.J. Hepburn, the victim in this case. It is uncon-tradicted that on the evening before the events giving rise to this prosecution Hepburn had beaten Rosa Clay with a wire coat hanger and forced her to remain with him for the evening for sexual purposes. The following morning Rosa fled Hepburn’s room after he had left for work. Rosa and Hepburn encountered each other again at Mom’s Cafe, where Hepburn again beat her violently. Hepburn was physically restrained and Rosa left Mom’s Cafe in tears. She went to her sister’s home a few blocks away and procured a small handgun from her sister’s pocketbook. As she exited her sister’s residence Rosa observed A.J. Hepburn, who had apparently followed her after she had fled from Mom’s Cafe. Hostile words were exchanged and Rosa fired one shot striking Hepburn in the chest. A short chase ensued and Hepburn took the firearm from Rosa and at close range pulled the trigger three times, each time a misfire. Rosa, still crying, returned to her sister’s house. Hepburn died on the scene.

Rosa made a statement to police officers indicating that she procured the firearm in order to shoot Hepburn.

It is upon the foregoing facts that the state argues that it has met its burden of proving premeditation beyond a reasonable doubt. In support of its argument, the state relies principally upon McCutchen v. State, 96 So.2d 152 (Fla.1957). In that case the Florida Supreme Court determined that a five-minute interval was a sufficient time to form the requisite premeditation to sustain a first degree murder conviction. If time were the only issue involved in the case sub judice we would of course apply McCutchen and affirm. There are other facts going to the issue of premeditation, however, which we must consider.

Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned. Larry v. State, 104 So.2d 352 (Fla.1958).

Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, - U.S. -, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).

Applying the standard announced in Sired we conclude that premeditation was not proved beyond a reasonable doubt. In Forehand v. State, 126 Fla. 464, 171 So. 241 (1936), aff’d after remand, 130 Fla. 355, 177 So. 550 (1937), the Florida Supreme Court stated:

As the element of premeditation is an essential ingredient of the crime of murder in the first degree, it is necessary that the fact of premeditation uninfluenced or uncontrolled by a dominating passion sufficient to obscure the reason based upon an adequate provocation must be established beyond a reasonable doubt before it can be said that the accused was guilty of murder in the first degree ....

Forehand, 171 So. at 243.

It is clear from this record that Rosa Clay was under a dominating passion and in fear of Hepburn. There is no evidence that she wanted to kill him. See Phippen v. State, 389 So.2d 991 (Fla.1980) (premeditation may be proved by circumstances where appellant repeated at least four or five times that he was going to or would like to kill his parents). Nor did Rosa previously warn or threaten Hepburn. See Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976) (prior warning that if victim should later happen to hear a gunshot it would be in his motel room). A five-minute interval in and of itself does not give rise to reflection and deliberation. Premeditation may be proved by the totality of the circumstances of the case. See Sireci, 399 So.2d 964; Phippen, 389 So.2d 991; Spinkellink, 313 So.2d 666.

Given the totality of the circumstances of this case, we are satisfied that premeditation has not been proved beyond a reasonable doubt.

Accordingly, pursuant to section 924.34, Florida Statutes (1979), the judgment of conviction of murder in the first degree is reversed and the cause remanded to the trial court to enter judgment for murder in the second degree and re-sentence the defendant accordingly. See Purkhiser v. State, 210 So.2d 448 (Fla.1968); Marcum v. State, 379 So.2d 974 (Fla. 5th DCA 1979), cert. denied, 389 So.2d 1112 (Fla.1980).

Reversed and remanded with directions.


text:
    CONTINENT REALTY, INC., a Florida corporation and John Trif, Appellants, v. Dory AUERBACH, Dory Auerbach Realty Corp., Morris Fox, Albert Evans, Edith Evans and Hidden Pines, Inc., Appellees.
    No. 81-2558.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Richard A. Barnett, Hollywood for appellants.
    Cohen, Rogovin, Reed & Ivans and Allen Reed, Miami, Sugarman & Arnold and David Arnold, Coral Gables, for appellees.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Hanover Realty Corp. v. Codorno, 95 So.2d 420 (Fla.1957).


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    STATE of Florida, Appellant, v. James Winfield JENNY, Appellee.
    No. 81-961.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 19, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison and Sharon Lee Sted-man, Asst. Attys. Gen., West Palm Beach, for appellant.
    Stanley M. Goldstein of Max B. Kogen, Miami, for appellee.
   OWEN, WILLIAM C., Jr., Associate Judge.

The State of Florida appeals from an order granting appellee’s motion to dismiss the charges against him. We reverse.

The issue here is whether Appellee, by appearing before the state attorney and testifying under oath pursuant to subpoena, was entitled, by virtue of Section 914.04, Florida Statutes (1979), to immunity as to the transactions concerning which he so testified, where Appellee (1) was not first informed of his right against self-incrimination, and (2) did not at any time assert such right.

We hold that (1) the statute did not confer either transactional or use immunity on Appellee in the absence of (a) his having asserted his privilege against self-incrimination, and (b) the state, on the basis of the statute, having compelled his answer over his objection, and (2) the state’s failure to first advise Appellee of his right against self-incrimination did not relieve him of the necessity to assert such right.

In State v. Perkins, 349 So.2d 802 (Fla. 2d DCA 1977), the court, in reversing an order which, on substantially similar facts, had dismissed an information on the basis of the immunity statute, stated, at page 803:

The immunity statute, Section 914.04, Florida Statutes (1975) is not self-executing upon the mere issuance of a subpoena or unprotesting compliance therewith. The issuance of a subpoena compels only the witness’ attendance (with the required documents in the case of a subpoena duces tecum). If the witness asserts his fifth amendment privilege upon being interrogated or requested to surrender the subpoenaed documents, the State may relieve him of providing incriminating evidence in compliance with the subpoena, see State ex rel Foster v. Hall, 230 So.2d 722 (Fla. 2d DCA 1970), cited and quoted with approval in Tsavaris v. Scruggs, No. 48,637 [360 So.2d 745] (Fla. March 17, 1977), or may require him to testify or turn over the subpoenaed documents, in which event the witness will have immunity pursuant to Section 914.04, Florida Statutes (1975).
In order to invoke the immunity provided by the statute, the witness must assert his privilege against self-incrimination. If he is nevertheless compelled to provide incriminating evidence, his answers may not be used against him in a later criminal prosecution. However, if he fails to assert his privilege, his failure to object may justifiably lead the state to assume that its compulsory process did not result in eliciting evidence that the witness deemed incriminating, and he should not be allowed to claim immunity after the fact. Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976).
At no time during the investigatory proceedings here did either appellee or his counsel raise an objection on the ground of self-incrimination. Having failed to assert his fifth amendment privilege against self-incrimination, he may not now claim immunity from prosecution or use of the subpoenaed documents against him on the sole basis that he turned over the requested documents. (Footnotes omitted.)

The First District Court of Appeal has taken the same position. In Melanson v. Nelson, 366 So.2d 1191 (Fla. 1st DCA 1979), involving the effect of the immunity statute on one served with a subpoena duces tecum commanding appearance instanter before a state attorney, the court, in denying petition for writ of prohibition against the trial court, stated at page 1192:

The purpose of Section 914.04 is to aid criminal prosecutions by allowing the state to elect to immunize one offender to secure the offender’s self-incriminating testimony for use in prosecuting another. Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); State v. Powell, 343 So.2d 892 (Fla. 1st DCA 1977); State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2d DCA 1970). The statute is not intended to confer immunity where the state does not choose to employ it. Thus, the mere issuance of a subpoena does not confer immunity, Tsavaris v. Scruggs, supra at 749. Nor is the state required to foresee that its compulsory process will result in eliciting testimony the witness deems incriminating. State v. Perkins, 349 So.2d 802 (Fla. 2d DCA 1977); Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976). The witness must assert his privilege against self-incrimination, upon being interrogated or ordered to surrender documents, thus presenting the state with a choice of conferring immunity and compelling the witness to testify, or relieving the witness of providing incriminating evidence. State v. Perkins, supra.
... We hold, however, that the state’s coercive purpose did not relieve Melanson of the requirement that he assert his privilege against self-incrimination and receive a grant of immunity from the state.

The Third District Court of Appeal, in State v. Kitchen, 353 So.2d 897 (Fla. 3d DCA 1977), also made clear the necessity of the witness being compelled to testify in order for the testimony to result in immunity under the statute, citing State v. Newsome, 349 So.2d 771 (Fla. 2d DCA 1977). In the latter case the court stated, at page 772:

In order for a witness’ testimony to result in either transactional or use immunity under Section 914.04, Florida Statutes (1975), the witness must be compelled to testify. The fact that Ms. New-some was subpoenaed to testify, standing alone, does not mean that her testimony was compelled. We so held in State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2d DCA 1970). See also Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976). Since she did not object to giving testimony, and the record does not reveal that she was coerced in any way, we conclude that her testimony was not compelled.

Appellee argues that the Newsome case, the Orosz case, and the Hall case can be distinguished because each involved a witness subpoena which commanded the witness to appear only, but did not require the witness to testify (as did the subpoena in this case). We reject that argument for it rests on a misconception of what was intended in State ex rel. Foster v. Hall, supra, and Orosz v. State, supra, when the court stated that “compulsory attendance is one thing and compulsory testimony is quite another.” Every subpoena commands the witness to appear and testify. Thus, in a literal sense both attendance and testimony are compulsory. But testimony which is protected by the constitutional privilege against self-incrimination certainly can not be compelled over the witness’ assertion of that right (and thus can not be said to be compulsory) unless, in reference to the testimony as to which the constitutional privilege has been claimed, the state then employs the immunity statute in order to compel that testimony. Only then is the testimony (or evidence produced pursuant to subpoena duces tecum) deemed compulsory, bringing in the statutory immunity, both transactional and as to use.

Appellee cites Holland v. State, 345 So.2d 802 (Fla. 4th DCA 1977), State v. Yatman, 320 So.2d 401 (Fla. 4th DCA 1975), and State ex rel. Lurie v. Rosier, 226 So.2d 825 (Fla. 4th DCA 1969) in support of his entitlement to immunity. None of the cited cases expressly considered or decided the question of whether the statute would confer immunity absent the witness being compelled to testify after asserting the privilege against self-incrimination. That lack of reference to the matter undoubtedly gave Appellee and the trial court justification to perceive those cases as authority for the proposition that the statute is self-executing and automatically confers immunity on the subject matter of the interrogation once the witness, in response to a subpoena, appears and testifies. To the extent that those cases infer any view inconsistent with the holding in this case, we clarify the opinions therein.

The failure of the state attorney to advise Appellee of his constitutional right against self-incrimination before conducting the interrogation does not have any effect on the immunity issue. Whether the failure in this regard affects the use of the information gained from the interrogation is an issue which is not before us.

The order granting the Motion to dismiss is REVERSED, and this cause remanded for further proceedings.

HERSEY and WALDEN, JJ., concur.

      . Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.

      . Accord, concurring opinion of Justice Adkins in D'Amato v. Morphonios, 381 So.2d 1355 (Fla. 1980).

      . See Melanson v. Nelson, 366 So.2d 1191 (Fla. 1st DCA 1979); State v. Newsome, 349 So.2d 771 (Fla. 2d DCA 1977).


text:
    Freddy Charles GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 81-2315.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 26, 1983.
    Richard L. Jorandby, Public Defender, Ellen Morris and Richard B. Greene, Asst. Public Defenders, and Albert Jackson, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We find no error by the trial court in refusing to sever appellant’s trial from that of his codefendant, see McCray v. State, 416 So.2d 804 (Fla.1982); no error in severing the offenses involved, see Williams v. State, 409 So.2d 253 (Fla. 4th DCA 1982) and Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); no error in refusing to declare a mistrial, see Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977); and, finally, no harmful error with respect to any limitations imposed upon trial counsel’s closing argument to the jury.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: DELL, Judge.

text:
    Robert J. KUECHENBERG and Interior Arts, Inc., Appellants, v. CREATIVE INTERIORS, INC., an Indiana corporation, Appellee.
    No. 82-443.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 25, 1983.

      William F. Zamer of William F. Zamer, P.A., Fort Lauderdale and J. Bruce Hoff-mann of Spencer, Hass-Perlman, Hoffmann & Bloom, Coral Gables, for appellants.
    John B. DiChiara of Di Giulian, Spellacy & DiChiara, Fort Lauderdale, for appellee.
   DELL, Judge.

Kuechenberg and Interior Arts appeal an order striking their pleadings and entering a default judgment in favor of Creative Interiors as a discovery sanction.

Appellee brought an action seeking an accounting from the appellants and a money judgment for any amounts found due appellee under a retail distributor’s agreement for artwork and related products. Appellants retained counsel and answered the complaint. On June 11, 1981, appellee served on appellants’ counsel a notice of request to produce certain books and records. Receiving neither the requested documents nor objections to their production, appellee moved for an order compelling production. The trial court granted appellee’s motion to compel on October 15, 1981, and ordered appellants to produce the requested documents within twenty days. This time passed without any production. On December 28, 1981, appellee requested sanctions for appellants’ continued failure to produce the requested documents but failed to schedule the motion for hearing. On February 18, 1982, appellee’s counsel wrote the trial judge and asked that the court impose the sanctions requested in his December 28, 1981 motion. On February 19, 1982, without notice and without a hearing, the trial court granted the motion for sanctions and entered a default judgment in favor of the appellee.

Two weeks later, appellants moved to set aside the default judgment and argued that the failure to produce was a result of both excusable neglect and counsel’s prolonged illness rather than a deliberate disregard of the court’s authority. The trial court refused to set aside the default judgment and this appeal followed.

Appellants contend that the trial court erred by striking their pleadings and entering a default judgment without notice and a hearing to determine if the conduct of appellants or their counsel warranted such an extreme sanction.

An order compelling discovery is not self-executing even though the order sets out specific sanctions for the failure to obey the discovery order. The party to be sanctioned must first be given notice and an opportunity to be heard and offer mitigating or extenuating evidence. Owens-Illinois, Inc. v. Lewis, 260 So.2d 221, 226 (Fla. 1st DCA 1972). The trial court erred by not affording appellants an opportunity to explain their failure to make discovery even after being ordered to do so. An evidentia-ry hearing held after remand will correct this error.

Accordingly, we reverse and remand for an evidentiary hearing to determine whether appellants’ failure to obey the order compelling discovery.rose to the level of disobedience which would justify the most severe sanction of striking pleadings and entering a default judgment or some lesser sanction set out in Florida Rule of Civil Procedure 1.380(b).

REVERSED and REMANDED.

HURLEY and WALDEN, JJ., concur.


author: HURLEY, Judge.

text:
    James Franklin McINTOSH, Appellant, v. STATE of Florida, Appellee.
    No. 82-1070.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Prosecutorial error during cross-examination compels the reversal of defendant’s conviction and sentence.

Defendant was charged with burglary of a conveyance. On direct examination, he admitted to having eight convictions and volunteered that he was on parole. On cross-examination, the prosecutor recovered this ground and then asked, “What were you on parole for?” The defendant responded, “burglary.” Defense counsel did not interpose an immediate objection, but did move for a mistrial a few moments later. In our view, the motion for mistrial was sufficiently timely and specific to preserve the point for appellate review.

It is elemental that “when a defendant admits to prior convictions and accurately states their number, the questioning should cease unless the defendant has opened the door to further inquiry.” Martin v. State, 411 So.2d 987, 989 (Fla. 4th DCA 1982). “[T]he prosecution may not ask further questions regarding prior convictions, and in particular the prosecution may not question the witness as to the nature of the crimes.” Cummings v. State, 412 So.2d 436, 438 (Fla. 4th DCA 1982); see also, Bain v. State, 422 So.2d 962 (Fla. 4th DCA 1982). The fact that the defendant was on trial for burglary only served to compound the prejudicial impact of the improper question and answer. Given these facts, we do not believe that a curative instruction could have remedied the error and, consequently, we hold that it was reversible error not to have granted defendant’s motion for mistrial.

Accordingly, defendant’s conviction and sentence are reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

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

      . § 810.02(1), Fla.Stat. (Supp.1982).


author: SHARP, Judge. DAUKSCH, Judge,

text:
    Debra Ann WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1485, 81-1641.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Williams appeals from her sentence and conviction for aggravated battery and from a final order revoking her probation based on that conviction. She argues the trial court arbitrarily limited the voir dire conducted by her attorney to such a degree that the conviction should be overturned and a new trial required. We agree.

In this case the trial judge conducted part of the voir dire. The State’s examination followed. It was brief but thorough. Defense counsel commenced with general questions, and had just begun to make particular inquiries of various prospective jurors when the trial court announced that his time was “up.”

From the record it is clear defense counsel was taken by surprise. He proffered to the court at least two areas of inquiry not touched upon by the State’s or the court’s questions. The court replied: “We’ll be here all day with your line of questioning,” and refused counsel any additional voir dire. The court noted that defense counsel had had twenty minutes to voir dire the jury; also, it was now lunch time.

There is no indication in this record that the court had set a time limit for either side or that there was any reason to cut off defense counsel’s voir dire. The State argues we should infer the court had instructed the attorneys they would be limited to twenty minutes voir dire per side due to a tight trial schedule. But there is no basis for such an inference in this record. We further note that counsel for the State filed a motion with this court conceding error on the part of the trial court for having limited voir dire in this manner and pointing out defense counsel had exhausted his preemp-tory challenges. We allowed the State to withdraw this motion; however, the fact that it was made refutes the State’s argument.

In Florida, a reasonable voir dire examination of prospective jurors by counsel is assured by Florida Rule of Criminal Procedure 3.300(b). The purpose of voir dire is to obtain a “fair and impartial jury to try the issues in the cause.” King v. State, 390 So.2d 315, 319 (Fla.1980). Time restrictions or limits on numbers of questions can result in the loss of this fundamental right. They do not flex with the circumstances, such as when a response to one question evokes follow-up questions.

We recognize there may be situations where the trial court is justified in curtailing voir dire, and we agree it has considerable discretion in determining the extent of counsel’s examination of prospective jurors. However, in this case defense counsel was prevented from asking pertinent questions not covered by the State or the court by a very short time limit imposed without apparent warning. This prevented counsel from asking questions which were neither repetitive nor improper. We conclude Williams was deprived of a fair trial by this curtailment of voir dire and she should be afforded a new trial. Accordingly, the judgments appealed are

REVERSED.

COBB, J., concurs.

DAUKSCH, J., concurs in part; dissents in part, with opinion.

DAUKSCH, Judge,

concurring in part; dissenting in part:

I agree the conviction for aggravated battery should be reversed for a new trial for the reasons set out in the majority opinion. I do not agree the order revoking probation should be reversed because I think that order was based upon competent substantial evidence which showed the appellant had violated her probation by committing the aggravated battery. The trial judge was the same person in both cases, he heard all the evidence and although his order of revocation was based upon the conviction it was also based upon what he heard at trial. He did not err in finding the appellant violated her probation and that order should be affirmed.

      . The two appeals were consolidated because both turn on the validity of Williams’ conviction for aggravated battery.

      . Defense counsel stated:
      [Wjhether or not there is any individual that has had a negative experience with law enforcement agencies; whether or not there have been individuals who have been victims of a similar type offense in relation thereto; and I have not been afforded an adequate opportunity to follow up on any inquiry about the personal situation of the individuals which I would make inquiry into, particularly about Mr. Steinwender’s wife, who works for the Seminole County Detention Center, which I have not had an opportunity to delve into....

      . The court may then examine each prospective juror individually or may examine prospective jurors collectively. Counsel for both State and defendant shall have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The right of the parties to conduct an examination of each juror orally shall be preserved.
      Fla.R.Crim.P. 3.300(b).

      . Loftin v. Wilson, 67 So.2d 185 (Fla.1953); La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967).

      . Slaughter v. State, 301 So.2d 762 (Fla.1974); Kalinosky v. State, 414 So.2d 234 (Fla. 4th DCA 1982).

      . We do not mean to suggest we would have decided this case differently had the time limit of twenty minutes been announced by the court prior to voir dire. Twenty minutes is a very short time, and the questions defense counsel sought to ask were relevant and not repetitive.


author: COBB, Judge.

text:
    Richard Bernard FREDERICK and John L. Inman, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-1584, 81-1650.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellants, Richard Bernard Frederick and John L. Inman, argue that the trial court erred by its refusal to instruct the jury, in regard to the burglary charge against them, as to the specific intent to permanently deprive the owner of the property. They rely on Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981), which held that such intent is an element of theft. In the instant case, however, theft is the underlying crime, not the primary charge.

Baxley has been distinguished by the recent case of Grant v. State, 420 So.2d 903 (Fla. 1st DCA 1982), relying on the reasoning of the Third District Court of Appeal in Taylor v. State:

The elements of the underlying felony ... need not be explained with the same particularity that would be required if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial.

Here, the trial judge defined the underlying offense of larceny as follows:

[Larceny] means, stealing. It’s called, in some of the statutes, theft, but everybody understands what the word stealing means.
They [Frederick and Inman] are charged with having the intent to steal. ... Now, what is theft? In Florida, theft or larceny is defined as knowingly and unlawfully obtaining or using or endeavoring to obtain or use, endeavoring to obtain or use the property of another and it must be done so with the intent to either deprive the victim of his right to the property or any benefit from it or to appropriate the property of the victim to the defendant’s own use or the use of any other person not entitled thereto.

There was no other objection to this charge and there is no challenge on appeal to the court’s instruction on the primary charge of burglary. Consequently, we find that the defendants, under these instructions, received a fair trial.

The remaining issue on appeal (the failure of the information to allege the owner’s non-consent to entry) is without merit in view of the recent Florida Supreme Court case of State v. Hicks, 421 So.2d 510 (Fla.1982).

AFFIRMED.

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

      . 386 So.2d 825, 829 (Fla. 3d DCA 1980).


author: ORFINGER, Chief Judge.

text:
    Sammie Lee LENNEAR, Appellant, v. STATE of Florida, Appellee.
    No. 82-169.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant correctly contends that he could not be convicted of both grand theft (second degree) and dealing in stolen property, because section 812.025, Florida Statutes (1981), prohibits both convictions. The evidence clearly showed only one scheme or course of conduct involving the theft and sale of the stolen property, so only one conviction is permitted. See Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981).

The State argues that two crimes were committed, not one, and thus multiple convictions and sentences are permissible under section 775.021(4), Florida Statutes (1981). From a double jeopardy standpoint, the State’s position seems to be correct, and without section 812.025, both convictions and sentences would appear to be proper. But, the legislature has the right to define crimes and provide for their punishment. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980), and section 812.025 limits the punishment and so must control, especially in view of the clear intention that it apply “Notwithstanding any other provision of law ... . ”

Accordingly, the conviction and sentence for the lesser offense of grand theft, second degree, are set aside, and the conviction and sentence for trafficking in stolen property are affirmed. See Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981).

AFFIRMED in part, and REVERSED in part.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . § 812.025, Fla.Stat. (1981):
      Charging theft and dealing in stolen property. —Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

      . See Borges v. State, 415 So.2d 1265 (Fla.1982).


author: McFERRIN SMITH, Associate Judge.

text:
    In re Forfeiture of a 1975 CHEVROLET CORVETTE, TWO-DOOR AUTOMOBILE, etc. Paul J. SANDIDGE, Appellant, v. STATE of Florida, ex rel. CITY OF OVIEDO, Seminole County, Florida, for the Use and Benefit of OVIEDO POLICE DEPARTMENT, Appellee.
    No. 82-335.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.

      Edward R. Kirkland, P.A., Orlando, for appellant.
    Douglas Cheshire, Jr., State Atty., Titus-ville, and Linda R. McCann, Asst. State Atty., Sanford, for appellee.
   McFERRIN SMITH, Associate Judge.

This is an appeal from an order of forfeiture by the Circuit Court of the Eighteenth Judicial Circuit. The trial court forfeited to the Police Department of the City of Oviedo appellant’s automobile and $1,326.11 in cash.

The central issue of this appeal is whether the State failed to follow the requirements of Florida Statute 932.704(1) by not “promptly” proceeding to seek forfeiture of the automobile and cash.

Appellant was arrested on April 16,1981, for a criminal traffic offense. During a valid inventory search of his vehicle, cocaine was found. Appellant was arrested for possession of this cocaine, and his vehicle and the disputed cash were seized. The defendant was charged with possession of cocaine and pled to that charge on July 27, 1981. On October 19,1981, the State began forfeiture proceedings, which ultimately resulted in this appeal.

Appellant has cited no Florida cases construing the requirement that the State “shall promptly proceed” with its forfeiture. However, there are numerous federal decisions construing similar language in federal forfeiture acts. These federal cases establish the principle that due process requires reasonably prompt forfeiture actions. See United States v. One Motor Yacht Named Mercury, 527 F.2d 1112 (1st Cir.1975); United States v. One 1978 Cadillac Sedan DeVille, 490 F.Supp. 725 (S.D.N.Y.1980); United States v. One 1973 Ford LTD, 409 F.Supp. 741 (Nev.1976).

The cases in which federal courts have found an unreasonable delay have generally involved greater delays than the six-month total period here. See, e.g., United States v. Eight Thousand Eight Hundred Fifty Dollars, 645 F.2d 836 (9th Cir.1981) (18-month delay); United States v. One 1970 Ford Pickup, 564 F.2d 864 (9th Cir.1977) (11-month delay); United States v. One Motor Yacht Named Mercury, (12½-month delay). On the other hand, delays of 4½ to 5 months have been held reasonable. See United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir.1977); United States v. One 1978 Cadillac Sedan DeVille.

We do not consider the time between the seizure (April 16, 1981) and the conclusion of the related criminal proceedings (July 27, 1981) to be a part of the formula for determining “promptness” within the meaning of section 932.704(1), Florida Statutes (1981). Therefore, this case involves a delay from July 27, 1981, to October 19, 1981, or roughly three months.

We are hesitant to announce a hard and fast rule defining “promptly.” Whether a particular delay is of such a nature to violate due process or the legislative mandate of promptness is a question of fact to be determined on a case by case basis.

Here, the appellant objected to the forfeiture on the basis of a lack of promptness in filing. However, he offered no facts to show that appellee was negligent, that the passage of time was unreasonable or that the appellant had been prejudiced. While it is true that the record is silent as to the State’s reasons for almost three months of delay, we can find no justification in this record for interfering with the trial court’s action in forfeiting the property.

Accordingly, the order of forfeiture of the trial court is hereby

AFFIRMED.

COBB and SHARP, JJ., concur.


author: SMITH, McFERRIN, Associate Judge.

text:
    Pamela WHITAKER, Appellant, v. Robert POWERS, Robert Howard and Zales Jewelers, etc., Appellees.
    No. 82-342.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    Brian D. DeGailler of Walker, Buckmas-ter, Miller & Ketcham, P.A., Orlando, for appellant.
    Edward Casoria, Jr., Orlando, for appel-lees Howard and Zales.
    No appearance for appellee Powers.
   SMITH, McFERRIN, Associate Judge.

Pamela Whitaker, plaintiff below, appeals from a final judgment in favor of Robert Powers, Robert N. Howard and Za-les Jewelers, etc., defendants below.

Count I of the complaint was an action for breach of contract. Ms. Whitaker alleged that on April 26, 1977, her attorney entered into a verbal contract with Mr. Powers, an agent for Zales, as follows:

In consideration of John R. Overchuck’s assurance that certain bills would be paid out of a settlement, ROBERT POWERS agreed on behalf of ZALES JEWELERS that he would voluntarily dismiss a law suit that ZALES JEWELERS had brought against the plaintiff, PAMELA WHITAKER, and that the credit of the plaintiff, PAMELA WHITAKER, was being preserved to the extent that no derogatory credit rating had been placed on file with any credit bureau by the defendant, ZALES JEWELERS.

Count II was an action for fraud and deceit. Ms. Whitaker alleged that Zales, through Powers, made representations concerning the preservation of her credit rating to her attorney, that the representations were false at the time they were made, (a derogatory credit report had already been made) and that the representations were made with the intent to deceive and defraud her and to induce her to act in accordance with the representations. Ms. Whitaker further alleged that she relied upon these representations.

The defendants moved for judgment on the pleadings, which the court ultimately granted. The trial court found that statements made by the defendants only induced Ms. Whitaker to do what she was already obligated to do (pay her bills) and therefore, she could not be defrauded by the statements; nor could these statements amount to “consideration” to form a contract.

The only issue for this court is whether the trial court properly entered its judgment on the pleadings. We find that it did not.

A motion for judgment on the pleadings under Rule 1.140(c) raises only questions of law, and matters outside the pleadings cannot be considered. All well-pleaded allegations of the non-moving party are taken to be true, while those of the movant that have been denied, are taken as not proved in determining the motion. Conclusions of law are not admitted by the motion. Trawick, Florida Practice and Procedure, § 10-9 (1981); Kreiger v. Ocean Properties, Ltd., 387 So.2d 1012 (Fla. 4th DC A 1980); City of Miami v. J.C. Vereen & Sons, Inc., 359 So.2d 533 (Fla. 3d DCA 1978).

Here, the trial court clearly considered matters outside the pleadings in concluding that Ms. Whitaker was already obligated to pay the “bills” referred to in her complaint. There is nothing in these pleadings to establish that these “bills” were Ms. Whitaker’s bills, or that Ms. Whitaker was legally obligated to pay them.

Accordingly, the judgment of the trial court is

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


author: JOANOS, Judge. ERVIN, Judge,

text:
    COMMERCIAL CARRIERS, INC., Self-Insured, Appellants, v. Elliott L. PORTER, Appellee.
    No. AG-413.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1982.

      Bernard J. Zimmerman, William G. Ber-zak and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, Miami, for appellee.
   JOANOS, Judge.

In this workers’ compensation appeal the employer (self-insured) contests the deputy commissioner’s order insofar as it ordered employer to pay for unauthorized non-emergency medical treatment and the accompanying hospitalization at American Hospital on the basis that it was reasonable and necessary; ordered employer to pay the bill of Baptist Hospital which employer asserts had been paid for over a year prior to the order; awarded $6,302.00 to Olga Porter for nursing services; and ordered employer to pay claimant’s attorney a fee of $44,000. (The accident occurred on September 25,1976.) We reverse as to all of these issues, except as to the Baptist Hospital bill, with regard to which we amend the order to provide for payment of that bill only if it has not been paid previously.

The award of payment for unauthorized medical treatment is reversed on the authority of City of Fort Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982). In the present case, Dr. Rivet, who performed certain unusual operations called cingulotomies for relief of claimant’s severe pain, was informed prior to rendering this treatment that it was unauthorized. In addition, claimant’s authorized treating physician, Dr. Dooley, recommended against the surgery. Although it is not asserted that the surgery was performed under emergency conditions, prior authorization was not sought before the deputy commissioner. There is evidence that the operations were successful in relieving claimant’s pain, and although he died shortly after-wards there is no suggestion by the treating physician that the operations contributed to his death. In the order, the deputy concluded that there had been no showing of prejudice to the employer, and no showing that the employer ever offered claimant an alternative to Dr. Rivet’s care and that, in fact, the testimony showed that the surgical procedure performed by Dr. Rivet “is so unique that he is one of the very few people in the United States qualified to undertake that procedure.” The determinative finding, that employer failed to offer claimant alternative care, is not supported by competent substantial evidence in the record. Employer was providing treatment by Dr. Dooley. Even though Dr. Rivet offered highly specialized treatment, the treating physician was consulted and recommended against the procedure. This does not constitute failure to provide alternative treatment. See Mt. Sinai Medical Center v. Lack, 381 So.2d 304 (Fla. 1st DCA 1980). Under the non-emergency circumstances of this case, prior authorization should have been sought before the deputy commissioner. The award of payment of the bill of American Hospital incurred pursuant to the unauthorized surgery is also reversed. Id.

In the deputy’s order dated August 31, 1979, which was earlier appealed to this court and affirmed without opinion, he ordered employer to pay Olga Porter $50 per day for attendant care services and provide care by another aide for one eight hour shift per day except during periods of hospitalization. In the order presently on appeal, the deputy ordered employer to pay Mrs. Porter an additional $46 per day because “the employer did not provide 24 hour care for 137 days and as a result Mrs. Porter handled that shift herself.” Appellant asserts that this latter award is precluded by the principle of res judicata because it relates to attendant care the claim for which was resolved by the order of August 31, 1979. Appellee’s response to this argument is: “If in fact the deputy ordered duplication of payments, he erred, and that part should be stricken. However, based on this record we submit that such is not the case and therefore this point should be affirmed.” Appellee misinterprets appellant’s argument, which is not based on duplication of benefits, and in addition has made no attempt to direct our attention to competent substantial evidence in the record to support the award. We have reviewed the record, which incorporates the previous record on appeal, and since it appears the award of additional payment was for a period of time addressed in the 1979 order, we conclude that appellant is correct. In effect, the deputy has modified the previous order on attendant care without proper justification. See Hodges v. State Road Department, 171 So.2d 523 (Fla.1965); Southern Bell Telephone and Telegraph Co. v. Blackstock, 419 So.2d 360 (Fla. 1st DCA 1982); and Green Thumb Corp. v. Britten, 393 So.2d 613 (Fla. 1st DCA 1981). The award of additional payment to Mrs. Porter for attendant care services is reversed.

Finally, appellant contends the award of $44,000 in attorney’s fees is excessive and constitutes an abuse of discretion. Part of the award ($36,500) was based on services relating to the first compensation order of August 31,1979. In making this award, the deputy found that claimant’s counsel “was responsible for procuring approximately $90,000 in benefits on behalf of Mr. Porter” without considering benefits which were voluntarily provided. We have been unable to locate competent substantial evidence in the record to support the finding that $90,-000 in benefits were procured by claimant’s counsel under the terms of that first order. The second part of the award ($7,500) was for obtaining the award for Dr. Rivet’s unauthorized surgery, the accompanying bill of American Hospital, and the bill of Baptist Hospital. Inasmuch as we have reversed or modified each of these awards, this portion of the fee must also be reversed. The award of $44,000 in attorney’s fees is reversed and remanded for redeter-mination in light of this opinion.

REVERSED and REMANDED.

McCORD, J., concurs.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge,

concurring and dissenting.

I concur in all facets of the majority’s opinion, except that portion reversing the deputy’s order which directed the appellant to pay certain medical bills relating to the cingulotomies performed by Dr. Rivet. In my judgment there is competent and substantial evidence supporting the deputy’s finding that there was no showing “that the employer ever offered to claimant any alternative to Dr. Rivet’s care.” Section 440.-13(1), Florida Statutes (1975), provides in pertinent part:

If the employer fails to provide the same [remedial treatment, care, etc.] after request by the injured employee, such injured employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a judge of industrial claims. The employee shall not be entitled to recover any amount personally expended for such treatment or service unless such employee shall have requested the employer to furnish the same and the employer shall have failed, refused or neglected to do so, or unless the nature of the injury required such treatment, nursing, and services and the employer or the superintendent or foreman thereof, having knowledge of such injury, shall have neglected to provide the same; ....

Subsection (2) of the statute also states:

If an injured employee objects to the medical attendance furnished by the employer, it shall be the duty of the employer to select another physician to treat the injured employee unless a judge of industrial claims determines that a change in medical attendance is not for the best interest of the injured employee; ....

The command of the statute is explicit: It is the duty of the employer to select another physician to treat the injured employee in all circumstances save one, and then only if the judge of industrial claims determines that a change in medical attendance is not in the best interest of the injured employee. In the instant case, no alternative treatment or physician was proposed by the employer.

The situation before us is strikingly similar to that in Deinema v. Pierpoint Condominiums, 415 So.2d 811, 813 (Fla. 1st DCA 1982), in which the claimant, having become dissatisfied with the treatment furnished by his authorized physician, requested the employer to provide the care of another doctor. The employer/carrier responded to this request by simply reauthorizing the same physician whom it had previously authorized. The claimant, without seeking a prior order from the deputy, ignored the employer’s action, then sought and received treatment from the doctor whom he had requested. In reversing that portion of the deputy’s order which refused to order the employer to pay for the requested evaluation and treatment of the unauthorized physician, we observed that the employer’s reau-thorization of the same doctor did not comply with the express provisions of Section 440.13(2), Florida Statutes (1979), which, in language identical to that of the 1975 statute, requires the employer “to select another physician to treat the injured employee” if the claimant objects to the medical treatment provided. Thus, we held that after the failure of the employer to provide alternative treatment, if the facts disclose the claimant’s dissatisfaction with the authorized physician is for good cause, the deputy, under the provisions of the statute, has no choice other than to approve the services provided by the claimant’s selected physician.

The majority’s reliance upon City of Ft. Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982), is in my judgment misplaced. The facts recited in the opinion reveal that once the claimant’s authorized physician recommended against certain surgery proposed by another physician, the employer authorized treatment by two other doctors. Moreover, on each later occasion that claimant requested the treatment by a specified doctor, the employer, while denying the request, offered alternative care. Hence, this court properly held that if an employer proposes alternative medical treatment, the claimant has no right to select a physician of his own choosing without seeking the deputy’s approval.

Although the factual pattern in Ramada Inn v. Foster, 409 So.2d 1087 (Fla. 1st DCA 1982) is somewhat dissimilar to that before us, the opinion nevertheless reiterates the general rule that once an employer is upon notice of the need of a certain recommended procedure, and after it has refused to authorize the procedure, without any medical basis for its refusal, and without offering any alternatives, it cannot be heard to complain of lack of notice, nor of the deputy’s order requiring it to pay for the cost of pain relieving drugs needed to relieve claimant’s suffering.

In the instant case, the deputy had before him competent and substantial evidence supporting his finding that the recommended cingulotomy was necessary. Claimant, previously accepted as permanently and totally disabled, was subjected to continuing and unremitting pain, which could be alleviated only with high dosages of narcotics. In order to relieve the pain and reduce the patient’s dependency on the narcotics, Dr. Dooley, claimant’s authorized physician, called in Dr. Rivet, who first recommended the implantation of electrodes in claimant's skull. The procedure, performed by Dr. Rivet with Dr. Dooley’s assistance, was unsuccessful. After its failure, claimant’s attorney contacted the employer’s claim representative concerning Dr. Rivet’s proposed cingulotomy. The representative, based upon Dr. Dooley’s negative opinion, declined the treatment, yet, despite notice of claimant’s unbearable pain, offered no suggested alternatives. Dr. Rivet, aware of the employer’s position, nevertheless performed three cingulotomies on claimant, which ultimately proved successful in that after the final one, claimant’s pain was alleviated to the extent that he had no further need for the alloted narcotics. As a consequence, the deputy had before him competent and substantial evidence from which he could conclude that the performance of the cingulotomies was both reasonable and necessary.

I would therefore sustain the deputy’s order as it relates to those medical services, but otherwise concur in the remaining portions of the majority’s opinion.


text:
    Robert B. WILLIAMS, Administrator, Florida State Hospital, Appellant, v. Glenn WILSON, William Rios, Joyce Malone, Appellees.
    Nos. AM-2, AM-3 and AM-157.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1982.
    Theodore E. Mack, Hospital Legal Counsel, State of Florida, Dept, of Health and Rehabilitative Services, Florida State Hospital, Chattahoochee, for appellant.
    Kenneth David Driggs, Asst. Public Defender, for appellees.
   WENTWORTH, Judge.

Appellant, as administrator of the Florida State Hospital, seeks review of three orders whereby petitions for continued involuntary confinement were denied. The orders indicate that the hearing officer did not restrict herself to consideration of the relevant criteria for involuntary confinement; we therefore reverse the orders appealed and remand the cause for further proceedings.

Section 394.467(1)(b), Florida Statutes (1981), establishes the criteria for noncriminal involuntary confinement, and provides that

Any other person may be involuntarily placed if he is mentally ill, and because of his illness, is:
1. Likely to injure himself or others if allowed to remain at liberty, or
2. In need of care or treatment which, if not provided, may result in neglect or refusal to care for himself, and such neglect or refusal poses a real and present threat of substantial harm to his well-being.

In applying this statute, the hearing officer must consider less restrictive alternatives to confinement, and the standard of proof is “clear and convincing” evidence. See In Re Beverly, 342 So.2d 481 (Fla.1977). Although Beverly is not explicit on this issue, we construe it as requiring consideration of only such alternatives as are in fact available, rather than hypothetical possibilities. In the present dispute the hearing officer’s orders appear to be predicated on such hypothetical possibilities, are otherwise internally inconsistent, and suggest that the statutory criteria for involuntary confinement have not been fully considered.

Accordingly, the orders appealed are reversed and the cause is remanded for further proceedings.

McCORD and BOOTH, JJ., concur.

      . The 1982 legislature amended the statute so as to require a finding that “all available less restrictive treatment alternatives ... [are] inappropriate.” [e.s.]

      . As to appellee Wilson, the hearing officer’s findings are consistent with the statutory criteria for involuntary confinement; however, in denying the petition the hearing officer further found that appellee could receive treatment in a less restrictive environment “if one were available.” The hearing officer did not indicate whether a less restrictive environment is available; record testimony suggests that it is not.

      . As to appellee Rios, the order states that “it cannot be said that the patient requires further treatment. The patient does not require nursing or supervisory care.” However, the order also indicates that Rios’ “insight is nill as is his reality contact.” Testimony suggested that Rios cannot care for himself without the threat of substantial harm to his well-being.

      .As to appellee Malone, the hearing officer apparently disagreed with the course of treatment being provided at the hospital, and expressed her opinion that alternative treatment should be sought outside the hospital. However, the order does not indicate any consideration of whether such alternative treatment is available, or whether the absence of care or treatment may result in neglect or appellee’s refusal to care for herself, posing a threat of substantial harm to her well-being.


text:
    John Felix ESPOSITO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1041.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1982.
    Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, Clear-water, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgments appealed are affirmed. However, we remand this cause to the trial court to correct imperfections in the sentence.

The written judgment and sentence recites that appellant was sentenced to a term of five years imprisonment on count I (conspiracy to traffic in methaqualone in excess of two hundred grams) and to ten years imprisonment on count II (delivery of meth-aqualone). Since the record of the sentencing hearing indicates that the court sentenced appellant to ten years imprisonment on count I and five years imprisonment on count II, the written judgment and sentence must be corrected to conform with the court’s oral pronouncement at sentencing.

Remanded for correction of the sentence, otherwise, affirmed. Appellant need not be present for this purpose.

HOBSON, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


author: JORGENSON, Judge. BASKIN, Judge

text:
    Joseph T. LANCE and Cross Key Waterways, Inc., Appellants, v. Charles H. WADE, Frank C. Herringer, and all others similarly situated, and the Homeowners Association of Cross Key Waterways, Inc., Appellees.
    Nos. 81-36, 81-98.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Jan. 24, 1983.
    Karl Beckmeyer, Tavernier, and Jeffrey E. Lehrman, Coconut Grove, for appellants.
    Silver, Levy & Hershoff and Jay M. Levy, Nachwalter & Falk, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Joseph T. Lance and Cross Key Waterways, Inc., appeal from an adverse judgment entered upon a jury verdict finding them liable for compensatory and punitive damages. The central issue in this appeal presents the question of the propriety of the trial court’s submitting to the jury a class action sounding in fraud. For the reasons which follow, we affirm.

Relying on Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955), appellants contend that an action of this nature may not be maintained. We disagree with that contention. The rule announced in Osceola Groves was characterized as “limited” by our Supreme Court in Frankel v. City of Miami Beach, 340 So.2d 463, 469 (Fla.1976). The Frankel court established a three-prong test which, when satisfied, permits a class action sounding in fraud. That test has been met by the appellees. Where, as here, the plaintiff, class is engaged in a cooperative enterprise (adjacent landowners attempting to use the same undeveloped road), have a joint pecuniary interest (their common ownership of the roadways in the subdivision), and do not have a choice of remedies which may be subject to separate and distinct defenses (the only defenses available to Lance and Cross Key Waterways were proof of contractual compliance, i.e., the building of the roads to county specifications, or the creation of a trial issue that the defendants’ guaranty of the roads was merely “puffing” and thus plaintiff class should not prevail), the Frankel criteria are met.

This case would be unwieldy in the form of individual suits and conforms with the rationale of Justice Terrel in Tenney v. City of Miami Beach, 11 So.2d 188 (Fla.1942), where, speaking for the court, he stated:

The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would otherwise not exist.... To have required 232 separate suits here would have been prohibitive and ridiculous and would have deprived many of a remedy.

11 So.2d at 189.

Appellants’ reliance on Costin v. Hargraves, 283 So.2d 375 (Fla. 1st DCA 1973), Equitable Life Assurance Society of the United States v. Fuller, 275 So.2d 568 (Fla. 3d DCA 1973), and Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970), is misplaced. Each of those cases fail to satisfy the three-prong test as announced in Frankel and are therefore inapplicable here.

We have examined each of the other issues raised in this appeal and find them to be without merit.

The judgments appealed from are accordingly affirmed.

BASKIN, Judge

(dissenting).

Purchasers of mobile home lots in Cross Key Waterways, Monroe County, filed a class action in which they sought damages predicated upon fraud. They alleged that approximately 350 purchasers relied, to their detriment, upon statements contained in the Public Offering Statement, brochure, and contract for deed, which represented that the lots would be provided access to the highway by means of a paved road and that other roads would be paved according to the specifications of the Monroe County engineer. When their repeated attempts to enforce numerous promises to pave the roads proved fruitless, the lot owners brought a class action, charging the seller, Cross Key Waterways, Inc., and its president, Joseph T. Lance, with fraud. Following trial, the court entered judgments in accordance with the jury verdicts: $200,000 compensatory damages and $300,000 punitive damages against Cross Key Waterways; $50,000 compensatory damages and $60,000 punitive damages against Joseph T. Lance. This appeal ensued.

Although Florida Rule of Civil Procedure 1.220 may now permit the filing of a class action alleging fraud, no similar rule authorized the institution of a class action for fraud at the time appellees filed suit. The Supreme Court of Florida has repeatedly ruled that class actions based upon claims of fraud are improper. Avila South Condominium Association v. Kappa Corp., 347 So.2d 599 (Fla.1976); Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955). In Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), which questioned the continuing validity of Osceola Groves, the court noted that Costin v. Hargraves, 283 So.2d 375 (Fla. 1st DCA 1973); Equitable Life Assurance Society of United States v. Fuller, 275 So.2d 568 (Fla. 3d DCA 1973); and Hendler v. Rogers House Condominium, 234 So.2d 128 (Fla. 4th DCA 1970) had correctly disapproved class actions for fraud. Furthermore, in Cherin v. Southern Star Land & Cattle Co., 400 So.2d 1 (Fla.1981), the court declined to answer the certified question presented by the appellate court in Cherin v. Southern Star Land & Cattle Co., 390 So.2d 104 (Fla. 3d DCA 1980) or to overrule Osceola Groves.

The doubt expressed by the supreme court in Frankel regarding adherence to the rule enunciated in Osceola Groves, and Justice England’s comments in his dissent in Avila South Condominium, suggest a need to remedy the class fraud problem:

The time has come, I believe, to acknowledge possibility that condominium developers in Florida may have spawned a new form of fraud — class fraud by general, public misrepresentations — and to admit that historic rules governing access to the courts are inappropriate to remedy this unique and persuasive problem.

347 So.2d at 610.

Although the supreme court may eventually reconsider the question of class action fraud lawsuits, this court is required to follow the law as it presently exists, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and to reverse the judgments entered by the trial court.

      . The plaintiffs alleged detrimental reliance upon fraudulent representations by the seller in its public offering statement and advertising fliers and upon oral fraudulent representations by the seller’s employees. The representations were that certain paved roads would be provided for access to and travel within a mobile home development.

      . Although the two members of the class named as its representatives testified that they had relied upon the documents, other purchasers testified that they had not relied upon those documents.

      . See Arnold, Class Actions in Florida—A New Look, 31 U.Fla.L.Rev. 551, 582-84 (1979); Fed.R.Civ.P. 23 advisory committee note.


text:
    The STATE of Florida, Appellant, v. Manuel CAMPANPONI, Appellee.
    No. 81-132.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    No appearance for appellee.
    SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ. .
   PER CURIAM.

The state appeals from a pre-trial interlocutory order entered below suppressing certain evidence obtained by a search and seizure and from an order dismissing an information. We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla.Const.; Fla.R.App.P. 9.140(c)(1)(A), (B).

The relevant facts pertaining to the search and seizure are as follows. On August 18, 1980, the defendant Manuel Cam-panponi presented himself for a commercial airline boarding at a security check area on concourse G of the Miami International Airport. The defendant showed his airline ticket to the security personnel stationed at the checkpoint. The ticket had been marked “P” by an unidentified airline ticket agent based on factors undisclosed in this record. The “P” notation, under routine airport security procedures, signified that the defendant fit the airline hijacker profile. A security guard, relying on this notation, patted down the defendant for weapons without allowing him to go through the metal detector at the checkpoint. The guard felt a lump in the defendant’s sock and motioned to a nearby police officer. The police officer responded and seized a bag of cocaine from the defendant’s sock. The trial court suppressed this bag of contraband drugs as having been seized in violation of the defendant’s Fourth Amendment rights, and granted the defendant’s subsequent motion to dismiss the information. This appeal follows.

The leading decision in Florida on airport security searches is Shapiro v. State, 390 So.2d 344 (Fla.1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1981). In that case, the Florida Supreme Court held that the search of an air traveler at a security checkpoint for weapons, explosives, or other devices which could be used to hijack an airplane prior to boarding a commercial airliner does not violate the air traveler’s Fourth Amendment rights for two reasons. First, it is said that such a search does not constitute an invasion of the air traveler’s reasonable expectation of privacy, thereby making the Fourth Amendment entirely inapplicable. Second, it is said that such a search is, in any event, entirely reasonable, thereby satisfying the Fourth Amendment’s reasonableness standard. The Court, speaking through Mr. Justice (now Chief Justice) Alderman, stated in relevant part as follows:

“Shapiro contends that the search and seizure violated his fourth amendment rights and that the cocaine should have been suppressed because the detective did not have sufficient probable cause to search his luggage. For several reasons, we hold that probable cause was not a prerequisite to this search in the security area of the airport, conducted for the limited purpose of discovering weapons, explosives, or other devices which could have been utilized to hijack an airplane.
In order for Shapiro to claim that his fourth amendment rights were violated, he must first establish that he had a reasonable expectation of privacy to be free from this particular intrusion by the detective. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A reasonable expectation of privacy under a given set of circumstances depends not only upon one’s actual subjective expectation of privacy but also upon whether society is prepared to recognize this expectation as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed. 220 (1979); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Here, the defendant clearly failed to demonstrate that he had a reasonable expectation of privacy to be free from the particular intrusion involved in this case — a search for what the detective thought was a bomb. Shapiro testified that since 1971, he had boarded airplanes at least twenty times and that he was aware that there is a checkpoint at every airport where carry-on baggage must be submitted for inspection. He further testified that he had seen baggage opened at the security stations and that he was fully aware that his could be opened. He knew that for his protection and for the protection of other air passengers, searches were conducted to prevent prospective hijackers from boarding airplanes. By his own testimony, he established that he had no subjective reasonable expectation that his baggage would not be searched.
Additionally, we conclude that even if Shapiro had some subjective expectation of privacy, society is not prepared to recognize such expectation as reasonable. At this point in time when airplane hijacking is at a crisis level, such an expectation, to be free from the limited intrusion brought about by the screening process utilized in the boarding area of the airports, is not justifiable under the circumstances. One who enters the boarding area of the airport knows or should know that he is subject to being searched for weapons or other devices which could be used for hijacking. Notices posted in front of boarding areas inform prospective air passengers that all are subject to anti-hijacking searches. These searches are not directed against individuals but rather are a part of a general screening process to avoid the carrying of weapons or explosive devices onto an aircraft.
Since Shapiro did not demonstrate that he had a reasonable expectation of privacy, the fourth amendment is not implicated, and probable cause was not requisite to justify the search.
Alternatively, assuming that Shapiro’s fourth amendment rights were implicated in this search, we find that the present search conducted for the limited purpose of preventing an airplane hijacking was proper under the fourth amendment. Two separate concepts justify this finding.
One of the exceptions to the fourth amendment requirement of a probable cause basis for a search is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This consent must be free and unconstrained, and the question of voluntariness is a question of fact to be determined from the totality of the circumstances. See Norman v. State, 379 So.2d 643 (Fla.1980). Analyzing in depth the subject of consent searches, the Supreme Court of the United States in Schneckloth determined that while knowledge of the right to refuse consent is a factor to be taken into account, the government need not establish such knowledge as an indispensable requisite to effective consent. The Court refused to extend the requirement of a knowing and intelligent waiver to the constitutional guarantee against unreasonable searches and seizures since, it explained, the protections of the fourth amendment have nothing to do with promoting the ascertainment of truth at a criminal trial. 412 U.S. at 241-42, 93 S.Ct. at 2055. See also Interest of R.L.J., 336 So.2d 132 (Fla. 1st DCA 1976).
Looking to the totality of the circumstances in the present case, we find that Shapiro voluntarily consented to the search. As previously stated, he was fully aware that upon entering the security boarding area of the airport, he was subject to a security search for weapons or other devices which could be employed to hijack an airliner. He also testified that he knew he did not have to go through the checkpoint and did not have to board the plane, or that he did not have to carry this suitcase onto the plane. He willingly chose to do so and thereby consented to the search of his person and baggage for the limited purpose of discovering weapons, explosives, or other devices which could be utilized to hijack an airplane. The fact that drugs instead of weapons were found,. however, does not require their suppression since the search was proper. See Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973).
Alternatively, even in the absence of consent, this limited security boarding area search would not have violated Shapiro’s fourth amendment rights. The fourth amendment provides that the people are entitled to be secure from unreasonable searches and seizures. The specific content and incidents of the fourth amendment guarantee are shaped by the context in which it is asserted. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To assess the reasonableness of security checks at airport boarding areas, we must balance the governmental interest justifying the governmental intrusion against the invasion which occurs as a result of the search. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
We hold that these searches are reasonable if conducted solely for the purpose of discovering whether a prospective air passenger poses an immediate threat to air commerce. Although the initiating purpose of the search is limited to the detection of a would-be hijacker, the search may be extensive because the airplane hijacker’s weaponry could be any of a number of easily concealed things including plastic explosives or gasoline. The fact that an object was not metal and therefore did not set off the magnetometer at the security boarding station does not mean the search must end at that point. See United States v. Bell, 464 F.2d 667 (2d Cir.1972), cert. denied, Bell v. United States, 409 U.S. 991 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). So long as the object of the search is prevention of an airplane hijacking, the search is reasonable and proper and does not require probable cause for its foundation. But, as Judge Clark said in United States v. Skipwith:
‘[cjertainly all citizens look forward to the day when skyjackings and their sequels, airport search and security measures, cease. When the threat of air piracy disappears the standards of reasonableness which we here recognize will go with it. Until that time arrives, however, the portent for evil supplies the requisite Fourth Amendment reasonableness to justify the search of any person who presents himself at a boarding gate to enter an aircraft.’
482 F.2d at 1279.” Id. at 347-48, 350.

Applying these principles to the instant case, it is clear beyond any hope of successful contradiction that the search in the instant case did not violate the defendant’s Fourth Amendment rights as interpreted in Shapiro. The pat-down search of the defendant was plainly a security search for weapons of an air traveler about to board a commercial airliner. The search, therefore, did not constitute an invasion of the defendant’s reasonable expectation of privacy under the Fourth Amendment, and even if it did, the search here satisfied the Fourth Amendment’s reasonableness standard. It appears clear to us that under Shapiro a security search for weapons and the like of an air traveler about to board a commercial airliner is akin to a border search, see e.g., Morales v. State, 407 So.2d 321, 327 (Fla.3d DCA 1981); except for an exceptionally intrusive search (i.e., a body cavity search), where some evidence of wrongdoing might be required, the security airport search does not run afoul of the Fourth Amendment. See Oishi v. State, 400 So.2d 480 (Fla. 5th DCA 1981).

The orders under review are reversed and the cause is remanded to the trial court with directions to (a) reinstate the information filed herein, (b) deny the defendant’s motion to suppress, and (c) conduct further proceedings not inconsistent with this opinion.

Reversed and remanded.