author: OVERTON, Justice.

text:
    FLORIDA SHERIFFS ASSOCIATION, James Scott, Sheriff of Jefferson County, etc., et al., Appellants, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, State of Florida—Wallace Henderson, etc., et al., Appellees. FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., etc., et al., Appellants, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, State of Florida—Wallace Henderson, etc., et al., Appellees.
    Nos. 55419, 55382.
    Supreme Court of Florida.
    Dec. 10, 1981.
    Rehearing Denied Feb. 15, 1982.
    Jack M. Skelding, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Ass’n, et al.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for Florida Police Benevolent Ass’n, Inc., et al.
    David V. Kerns, Gen. Counsel, Tallahassee, for Dept, of Administration.
    Stephen S. Mathues, Asst. Division Atty., Tallahassee, for Division of Retirement.
   OVERTON, Justice.

This is an appeal by special risk law enforcement members of the Florida Retirement System created by chapter 121, Florida Statutes (1971), asserting the unconstitutionality of sections 121.091(l)(a) and .091(11), Florida Statutes (1979). By this act, the legislature reduced prospectively from three percent to two percent the special risk credit these members earn toward retirement. Appellants contend that the legislature is contractually bound by its prior legislative act, and any reduction in the amount present employees can earn toward future retirement is a constitutionally prohibited impairment of the employees’ contract with the state. We reject this contention and find that the legislature has the authority to prospectively modify or amend the mandatory, noncontributory retirement plan.

To fully understand governmental retirement plans, it is important to define certain terms. First, it is necessary to distinguish a “mandatory retirement plan” from a “voluntary retirement plan.” In a mandatory plan, the employee is required to participate. In a voluntary plan, the employee has complete choice in whether to participate. Second, we distinguish a “noncontributory retirement plan” from a “contributory plan.” In a noncontributory plan, the employer contributes the entire amount to the retirement fund for the employee. In a contributory plan, both the employer and the employee must contribute to the retirement fund. Each of these terms is interrelated but not interdependent; both a mandatory and voluntary system can be contributory or noncontributory. For example, a mandatory plan may require the employee to contribute part of his pay to the system or, if noncontributory, the employer would contribute the entire amount necessary for the plan’s operation.

The circumstances behind this suit are essentially undisputed. We set them forth chronologically:

(1)On December 1, 1970, the legislature consolidated all existing retirement systems into a mandatory, contributory plan by the enactment of chapter 70-112, Laws of Florida (codified as chapter 121, Florida Statutes (1971)). Appellants are members of this system.

(2) In accordance with section 121.-091(l)(a), Florida Statutes (1973), appellants, as law enforcement officers, received a “special risk credit” as an extra benefit. Before July 1, 1974, the credit equaled two percent of the officers’ average monthly income.

(3) Effective July 1, 1974, the legislature enacted a “preservation of rights” provision, section 121.011(3)(d), providing:

The rights of members of the retirement system established by this chapter shall not be impaired by virtue of the conversion of the Florida Retirement System to an employee noncontributory system. As of July 1, 1974, the rights of members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.

(4) Effective October 1, 1974, the legislature enacted chapter 74-376, Laws of Florida, amending section 121.091(l)(a), to increase the special risk credit from two to three percent.

(5) On January 1, 1975, the retirement plan changed from a contributory to a noncontributory plan, the state assuming the full burden of making the plan actuarially sound. § 121.071, Fla.Stat. (1975). Employees, therefore, no longer were required to contribute.

(6) Effective October 1, 1978, the legislature enacted chapter 78-308, section 6, Laws of Florida (codified as section 121.-091(l)(a), .091(11), Florida Statutes (1979)), reducing prospectively the special risk credit from three to two percent.

Appellants commenced this action in circuit court, contending that the “preservation of rights” provision of section 121.-011(3)(d), enacted in 1974, elevated Florida’s retirement system to a binding contractual relationship between employees and the state. Appellants argue that reduction of special risk credit impaired this contractual right and thus violated article I, section 10, Florida Constitution. The trial court entered judgment against appellants, granting the Department of Administration’s motion for summary judgment, saying: “The court fails to find any vested contractual right in [appellants] which would have been impaired by the act of the state.” We find this an inherent ruling on the constitutional validity of sections 121.-091(l)(a), .091(11), Florida Statutes (1979), which vests jurisdiction in this Court pursuant to article V, section 3(b)(1), Florida Constitution (1972).

Prior to the statutory enactment of the preservation of rights provision in 1974, there was considerable Florida case law which established basic legal guidelines for governmental retirement systems in the state. It is necessary to fully discuss these cases to best understand the intent of the legislature in enacting this provision. In an early decision, this Court expressly held that Florida’s constitutional impairment of contract provision did not protect a governmental mandatory retirement system and that the legislature could modify or alter benefits provided by such a retirement plan. Anders v. Nicholson, 111 Fla. 849, 150 So. 639 (1933).

Although the Anders case involved a voluntary, contributory retirement plan, the Court discussed the principles applicable to both mandatory and voluntary plans. In Anders, the employee was a participant in the City of Jacksonville’s voluntary retirement system. When originated in 1919, the pension fund provided that, upon discharge, an employee who participated in the plan could withdraw his contributions in full plus four percent interest. Subsequently in 1925, the city amended the plan to allow, upon discharge, only a refund of fifty percent of the amount personally contributed by the employee without interest. The employee was terminated in 1932 and sought to obtain the full amount of his contributions with interest under the 1919 act. The city contended that the provisions of the 1925 act controlled and thus the employee should only receive one-half of his contributed amount without interest. The Court held that, because the plan was voluntary, contractual principles applied and the employee had a contractual right in the amount of his contributions up to the date of the retirement plan’s amendment in 1925. The Court determined that the employee could receive all contributions paid plus interest in accordance with the 1919 act before the 1925 act’s effective date, but, because he acquiesced in the terms of the 1925 act by continued participation in the plan after 1925, he could only receive fifty percent of his payment without interest after the effective date.

The decision went further to point out that an employee under a mandatory pension system would not be similarly protected. Quoting from a prior decision, the Court said:

“It is also settled that constitutional provisions against impairing the obligation of a contract do not apply to obligations imposed by the law without the assent of the party bound, even though by a legal fiction they may be enforced in an action in form ex contractu. In other words, the classes of contracts protected are voluntary — that is, based on the assent of the parties, expressly or impliedly given. That class of obligations, aptly styled ‘quasi contracts,’ is not embraced within the constitutional guaranty against the passage of a law violating the obligation of a contract....”
Quasi contracts are defined in 13 C.J. 244, as:
“A class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on the legal fiction and are not contract obligations at all in the true sense, for there is no agreement.”

Id. at 855-56,150 So. at 642 (citations omitted).

Shortly after Anders, this Court held that, even where an employee had already retired, the legislature had the authority to reduce the retirement benefits under a mandatory plan. State ex rel. Holton v. City of Tampa, 119 Fla. 556, 159 So. 292 (1934). The Holton court based its decision in part on Anders and noted that, under the peculiar wording of the specific pension act, the city considered a retired employee as an employee in active service, and, as such, the retired employee was bound by the amenda-tory acts which reduced pension benefits the same as an active employee.

The authority of the legislature to change a retirement plan for existing employees was the issue in Voorhees v. City of Miami, 145 Fla. 402, 199 So. 313 (1940). In this case, active employees of the City of Miami entitled to retirement benefits under the city’s original mandatory retirement act instituted the action. This Court held that a subsequent amendatory act repealing the original retirement plan and substituting a new one in its place was valid and binding on all-employees of the city, including the participants of the original pension plan. The Court said:

[T]he rights of a person in such a pension fund, even though he contributes to its maintenance, are not such as will prevent the Legislature from repealing or amending the statute, merely because the officer or employee has contributed to the fund so long as the fund existed and the law stood unrepealed.

Id. at 408, 199 So. at 315.

The “active employee” distinction discussed in Holton is important when considering our more recent decision in City of Jacksonville Beach v. State ex rel. O’Donald, 151 So.2d 430 (Fla.1963), in which we affirmed an extensive opinion rendered by Judge Wigginton of the First District Court of Appeal, reported at 142 So.2d 349 (Fla. 1st DCA 1962). In affirming, we held that the right of a public employee in either a voluntary or mandatory ' governmental retirement plan “vested at least at the time he actually retired.” This Court noted that City of Jacksonville Beach was not in conflict with our prior decision in Holton because the legislative alteration of benefits in Holton affected employees in active service and held that an alteration of the benefits for an active employee could be done as long as the reduction did not amount to an unjustified deprivation, as distinguished from a reasonable regulation. This Court did not overrule Anders, Holton, or Voo-rhees in City of Jacksonville Beach but discussed each case at length and approved the digest of principles and law which each case established.

Although, by the foregoing decisions, this Court has stated that the legislature can alter retirement benefits of active employees, the Court has also expressly held that, whether in a voluntary or mandatory plan, once a participating member reaches retirement status, the benefits under the terms of the act in effect at the time of the employee's retirement vest. The contractual relationship may not thereafter be affected or adversely altered by subsequent statutory enactments. City of Jacksonville Beach, State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.2d 127 (1941).

Appellant employees argue in the instant case that the 1974 enactment of the “preservation of rights” provision changed the case law and made Florida’s retirement system an absolute and binding contractual relationship between employees and the state. By this act, the employees urge, the legislature agreed that it would not abridge those rights by unilateral action at any future time. Appellants base their argument upon that part of section 121.011(3)(d) which states: “[T]he rights of members of the retirement system established by this chapter are declared to be of a contractual nature entered into between the member and the state and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.” Appellants assert that this statutory provision eliminates the Anders-Holton rationale.

We agree that this statutory provision does alter the Anders-Holton rationale for benefits already earned by active employees up to the time the legislature changes the law. Under the prior case law, if the retirement system was mandatory as it is now, the legislature could at any time alter the benefits retroactively or prospectively for active employees. This principle was clearly established in Voorhees. That rule of law has now been changed by the “preservation of rights” section which modifies the Voorhees rule and vests all rights and benefits already earned under the present retirement plan so that the legislature may now only alter retirement benefits prospectively.

We stress that the rights provision was not intended to bind future legislatures from prospectively altering benefits which accrue for future state service. To hold otherwise would mean that no future legislature could in any way alter future benefits of active employees for future services, except in a manner favorable to the employee. This view would, in effect, impose on the state the permanent responsibility for maintaining a retirement plan which could never be amended or repealed irrespective of the fiscal condition of this state. Such a decision could lead to fiscal irresponsibility. It would also impose on state employees an inflexible plan which would prohibit the legislature from modifying the plan in a way that would be beneficial to a majority of employees, but would not be beneficial to a minority. Since two different plans cannot exist for the same type of employee, the implementation of appellants’ contention would also bind the legislature to this plan for future employees. We find appellants’ contention is not in accordance with the intent of the legislature and conclude that the legislature has the authority to modify or alter prospectively the mandatory, noncontributory retirement plan for active state employees.

In the instant ease, special risk employees received two percent special risk credit pri- or to October 1, 1974. From October 1, 1974, to October 1, 1978, they received a special risk credit of three percent. The legislature then changed the credit back to two percent. Because of the preservation of rights statutory provision, the legislature could not take away the additional one percent earned from October 1, 1974, to October 1,1978, but it could change the rate for future services subsequent to October 1, 1978.

Accordingly, we hold that there was no impairment of any statutorily created contract rights which prohibits prospective reduction of special risk credit. The trial court order granting summary judgment to appellees is affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents.

       Prohibited Laws. — No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.
      (Emphasis ours.)


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    W. T. PARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 59947.
    Supreme Court of Florida.
    Jan. 7, 1982.

      Richard L. Jorandby, Public Defender and Charles D. Peters, Chief, Appellate Division, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Laura R. Morrison and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for respondent.
   McDONALD, Justice.

On the basis of express conflict of decisions, Parker asks us to review a ruling of the Fourth District Court of Appeal, reported as Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980). We have jurisdiction and approve Parker.

Parker was charged with two counts of aggravated assault and with one count of possession of a firearm by a convicted felon. In proving the possession charge the state introduced, over objection, a certified copy of a judgment and sentence for breaking and entering with intent to commit grand larceny to establish Parker’s prior conviction. Defense counsel had offered to stipulate to the previous conviction, but the state refused the offer.

The question before us is whether the state may refuse a defendant’s offer to stipulate to a prior felony conviction and prove the conviction by the use of a certified copy of the judgment when the fact of the conviction is an essential element of the crime charged.

We previously held in Arrington v. State, 233 So.2d 634 (Fla.1970), that the state is not bound by the defendant’s offer to stipulate to essential elements of the crime, stating that exclusion of such relevant evidence is left to the discretion of the trial court based on traditional grounds. Section 790.23(1), Florida Statutes (1977), prohibiting the possession of a firearm by a convicted felon, makes a prior conviction an essential element of the crime. Therefore, proof of conviction is relevant evidence and is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence.

In the present case the probative value of the evidence is not substantially outweighed by any of these considerations. The decision of the district court is approved. We disapprove Fouts v. State, 374 So.2d 22 (Fla. 2nd DCA 1979), to the extent it conflicts with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

      . Conflict with Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). Art. V § 3(b)(3), Fla. Const.

      . The certified copy was similar to the form set out in rule 3.986 of the Florida Rules of Criminal Procedure.

      .§§ 90.402 and 90.403, Fla.Stat. (1979). Although not in effect at the time of Parker’s trial, § 90.403 codified the then pre-existing case law governing the admissibility of evidence.


text:
    L. H., a child; C. J. D., a child; G. P. S., a child; D. T. H., a child; H. A., a child; M. D. B., a child; A. C., a child; R. A. J., a child; T. O., a child; and K. G. D., a child, Petitioners, v. STATE of Florida, Respondent.
    No. 60061.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Jerry Hill, Public Defender, and P. Douglas Brinkmeyer and David A. Davis, Asst. Public Defenders, Bartow, for petitioners.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason and Deborah A. Osmond, Asst. At-tys. Gen., Tampa, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Second District Court of Appeal reported at 392 So.2d 294 (Fla. 2d DCA 1980), which directly conflicts with the decision of the Fifth District Court of Appeal in P. L. H. v. Brownlee, 389 So.2d 649 (Fla. 5th DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue is whether the amount of time the state had to file a delinquency petition, after a complaint had been referred to a juvenile intake officer, was thirty days, as provided in then Rule of Juvenile Procedure 8.110(e), or forty-fivé days, as provided in section 39.05(6), Florida Statutes (1979). Our decision in this case is of limited application because we have since amended Rule 8.110(e) to conform with the forty-five-dáy statutory period. See In re Florida Rules of Juvenile Procedure, 389 So.2d 197 (Fla.1980).

We agree with the Second District Court of Appeal that our decision in State Department of Health & Rehabilitative Services v. Golden, 350 So.2d 344 (Fla.1976), is inapplicable under the circumstances of this cause and approve the district court’s reasoning that the legislature had the substantive authority to establish' the time period. Accordingly, we approve the instant decision of the Second District Court of Appeal and disapprove the decision of the Fifth District Court of Appeal in Brownlee.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: ADKINS, Justice.

text:
    UNIVERSITY PRESBYTERIAN HOMES, INC., Petitioner, v. Melvin B. SMITH, etc., Respondent.
    No. 60084.
    Supreme Court of Florida.
    Jan. 7, 1982.

      John W. Puffer, III and Francis H. Cobb of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.
    J. Bert Grandoff, County Atty., and David M. Mechanik and Susan G. Sexton, Asst. County Attys., Tampa, for respondent.
    H. Kenza van Assenderp and Mary Lou R. Santry of Young, van Assenderp, Varna-doe & Benton, Tallahassee, for the Florida Tax Collectors, Inc., amicus curiae.
   ADKINS, Justice.

This is a petition seeking review of a decision of the District Court of Appeal, Second District, reported at 390 So.2d 79 (Fla. 2d DCA 1980), which conflicts with the decision in City of Opa-Locka v. Buckress Land Company, 247 So.2d 339 (Fla. 3rd DCA 1971).

The issue presented is whether a court may award prejudgment interest against a tax collector in favor of a taxpayer in the absence of any specific statute authorizing such an award. In the instant case, the court refused to make such an award; in Opa-Locka, supra, the court made such an award.

We approve the decision below and adopt it as our own. City of Opa-Locka v. Buckress Land Company is overruled.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON and McDONALD, JJ., concur.


author: BOYD, Justice.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, etc., Petitioner, v. Jack R. LACKORE and Madeline Lackore, Respondents.
    No. 60099.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Frank G. Cibula, Jr. of the Law Office of Frank G. Cibula, Jr., West Palm Beach, for petitioner.

      Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of a district court of appeal decision on the ground of express and direct conflict. Art. V, § 3(b)(3), Fla.Const. At issue is the extent of an insurer’s obligation to provide uninsured (or “underinsured”) motorist benefits to an insured who has already collected personal injury protection benefits and medical payment benefits from the insurer. The decision under review, Lackore v. Hartford Accident & Indemnity Co., 390 So.2d 486 (Fla. 4th DCA 1980), conflicts with Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979).

Madeline Lackore was injured in an automobile accident. She accepted $10,000 from the other motorist in settlement of her claim for damages against him. The $10,-000 offered in settlement represented the limit of the other motorist’s liability insurance coverage. Since Mrs. Lackore’s damages exceeded $10,000, the other motorist was to that extent an “underinsured” motorist.

Mrs. Lackore then made a written demand for arbitration against her own insurer, Hartford Accident and Indemnity Company. Hartford had issued Mrs. Lackore a policy providing $35,000 in uninsured motorist coverage. The circuit court entered judgment ordering Hartford to proceed with arbitration, but on rehearing held that Hartford was entitled to set off not only the amount Mrs. Lackore had received from the “underinsured” motorist but also the amounts Hartford had paid her in personal injury protection and medical payment benefits.

On appeal, the district court held that section 627.727(1), Florida Statutes (1977), did not allow Hartford to set off the amounts Mrs. Lackore had received in personal injury protection and medical payment benefits. Section 627.727(1), requiring automobile liability insurance policies to provide uninsured motorist coverage, provided in relevant part:

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

The court reasoned that if the insured does not claim, under his uninsured motorist coverage, benefits received or available under some other category of coverage, the uninsured motorist coverage should not be reduced by the amount of such other benefits received or available.

For example, in the case at hand, so long as Mrs. Lackore makes no claim under her uninsured motorist coverage for benefits already paid or still available under her personal injury protection or medical pay coverages, she should be given an opportunity to prove that she has sustained other damages up to the amount of her uninsured motorist coverage limits. There should be no automatic reduction such as was ordered herein.

390 So.2d at 487 (footnote omitted).

The petitioner argues that the district court’s decision is erroneous under the applicable law. A close examination of the precedents, however, refutes this argument and reveals that the district court was correct.

Our analysis begins with Stuyvesant Insurance Co. v. Johnson, 307 So.2d 229 (Fla. 4th DCA), cert. denied, 316 So.2d 290 (Fla.1975), where the district court allowed the insurer to set off the amount of personal injury protection benefits the insured had received for loss of earnings and medical expenses. The court explained that the insured’s demand for arbitration for uninsured motorist benefits included “damages for the same loss of wages and medical expenses.” Id. at 230.

The Stuyvesant holding was adhered to, though the facts were distinguished, by the third district court of appeal in American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla. 3d DCA 1975). In that case the insured was awarded $10,000 in an uninsured motorist arbitration proceeding which by its terms excluded medical bills, loss of earnings, and loss of past and future earning capacity. The insurer appealed, arguing that under Stuyvesant it should be allowed to set off the amount of personal injury protection benefits. The district court affirmed the award, distinguishing Stuyvesant on the basis that the award did not result in a duplication of benefits.

A reading of the uninsured motorist and personal injury protection statutes in conjunction with the above cited cases discloses that the uninsured motorist coverage is designed to be the excess over and not duplicate benefits under the personal injury protection coverage. The intention of the Legislature was to assure the insured the full amount of uninsured motorist coverage to the extent that he can show entitlement thereto without the duplication of benefits.

American Service Mutual Insurance Co. v. Wilson, 323 So.2d at 648.

In two subsequent cases, the courts allowed the insurers to set off personal injury protection benefits against uninsured motorist claims, but it is unclear from the opinions whether the insureds were seeking duplication of benefits. See Evans v. Florida Farm Bureau Casualty Insurance Co., 355 So.2d 149 (Fla. 1st DCA 1978); Fidelity & Casualty Co. of New York v. Moreno, 350 So.2d 38 (Fla. 3d DCA 1977).

Further ambiguity was created by our decision in Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), where we construed section 627.727 to allow an uninsured motorist carrier to set off the amount of liability benefits the insured received from an underinsured’s carrier. Reasoning that there was no logical reason for distinguishing liability coverage from other types of coverage listed in section 627.727, several courts began holding that Dewberry authorized uninsured motorist carriers to set off the amount of benefits available to an insured from such other sources even when the insured’s injuries exceeded the limits of the combined coverages. See Kenilworth Insurance Co. v. Drake, 396 So.2d 836 (Fla. 2d DCA 1981); Waters v. State Farm Mutual Automobile Insurance Co., 393 So.2d 1203 (Fla. 2d DCA 1981); Masters v. Lester, 366 So.2d 471 (Fla. 1st DCA 1979). In these cases the courts misunderstood Dewberry; there we allowed the uninsured motorist carrier to set off the underinsured motorist’s liability proceeds because they were duplicative. Both the uninsured motorist benefits and liability insurance benefits were meant to compensate the insured for the death of his minor children. As such they duplicated the same element of damages. By relying on Masters, the district court in Carter v. Government Employees Insurance Co., the case cited as being in conflict, made the same mistake.

We therefore hold that an uninsured motorist carrier may not automatically set off from its uninsured motorist coverage the amount of personal injury protection and medical payment benefits available to the insured. It can, however, set off the amount of benefits available to the insured which would reimburse the insured for the same damages. The purpose of allowing a set-off is to prevent duplication of benefits. Although not critical to our holding, the 1979 amendment to section 627.727 supports our construction of the statute. See Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980). Accordingly we approve the decision of the district court of appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

      . Mrs. Lackore argued that a recent amendment to section 627.727(1), chapter 79-241, section 2, Laws of Florida, had clarified the legislative intent regarding the extent to which insurers might set off benefits an insured has received from collateral sources. See Carter v. Gov't Employees Ins. Co., 377 So.2d 242, 244 (Fla. 1st DCA 1979) (Ervin, J., dissenting). The 1979 amendment deleted the words “any automobile liability or” from the above-quoted sentence and added the sentence: “Only the under-insured motorist’s automobile liability insurance shall be set-off against underinsured motorist coverage.” The district court declined to ground its decision on this argument. Lackore v. Hartford Accident & Indem. Co., 390 So.2d at 486, n. 1.


author: PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Gerhard S. BERGMAN, et al., Respondents. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. James M. WALTER, etc., et al., Respondents. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Linda T. SMITH, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. May WHITE, Respondent.
    Nos. 59706, 59908, 60235 and 60236.
    Supreme Court of Florida.
    Jan. 7, 1982.
    James O. Driscoll and Thomas G. Kane of Driscoll, Langston, Layton & Kane, Orlando, and Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for petitioner.
    Anne C. Conway of Wells, Gattis, Hal-lowes, Holbrook & Conway, Orlando, for Gerhard S. Bergman, et al.
    David M. Hammond of Meyers, Mooney, Adler & Hammond, Orlando, for James M. Walter, etc., et al.
    W. M. Chanfrau of Chanfrau & Chanfrau, Daytona Beach, for Linda T. Smith.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for May White.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

The decisions of the district court of appeal, 387 So.2d 494; 388 So.2d 1082; 392 So.2d 267; 392 So.2d 268, in the above-styled cases are approved on the authority of Hartford Accident & Indemnity Co. v. Lackore, 408 So.2d 1040 (Fla.1982).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    SHELBY MUTUAL INSURANCE COMPANY, etc., Petitioner, v. Lucinda M. JOHNSON and James W. Johnson, her husband, Respondents.
    No. 59949.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Neal P. Pitts and Alton G. Pitts of Pitts, Eubanks & Ross, Orlando, for petitioner.

      Steven Burrage of Robert D. Melton, P.A., Orlando, for respondents.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

The decision of the district court of appeal, 389 So.2d 332, is approved on the authority of Hartford Accident & Indemnity Co. v. Lackore, 408 So.2d 1040 (1982).

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    Richard M. WATERS, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 60365.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Craig M. Spanjers of Stanley, Wines & Smith, Auburndale, Florida, for petitioner.
    J. Michael McCarthy of McCarthy & Sawyer, Lakeland, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review grounded upon conflict of decisions. Waters v. State Farm Mutual Automobile Insurance Co., 393 So.2d 1203 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The decision of the district court of appeal, 393 So.2d 1203 is quashed on the authority of Hartford Accident & Indemnity Co. v. Lackore, 408 So.2d 1040 (1982). The case is remanded to the district court for further consideration consistent with that opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    JULIAN E. JOHNSON & SONS, INC., Petitioner, v. BALBOA INSURANCE CO., Respondent.
    No. 58425.
    Supreme Court of Florida.
    Jan. 14, 1982.

      James L. Ade and Stephen H. Durant of Martin, Ade, Birchfield & Johnson, Jacksonville, for petitioner.
    Donald E. Grincewicz of the Law Office of Carroll S. Barco, Orlando, for respondent.
   McDONALD, Justice.

We review the opinion of the First District Court of Appeal in Balboa Insurance Co. v. Julian E. Johnson & Sons, Inc., 378 So.2d 801 (Fla. 1st DCA 1979), which directly conflicts with Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla. 3rd DCA 1972), on the same point of law. Art. V, § 3(b)(3), Fla.Const. (1972).

Julian E. Johnson & Sons, Inc., is a paving subcontractor which engaged in paving work pursuant to a contract with English-town, Inc., the prime contractor on a project in Jacksonville, Florida. English-town purchased a bond from Balboa Insurance Company on behalf of the owner of the property pursuant to section 713.23, Florida Statutes (1977). After Englishtown failed to pay Johnson, Johnson sued Eng-lishtown and Balboa and gained a judgment against them.

Johnson’s complaint originally sought attorney’s fees in accordance with the provisions of section 627.756, Florida Statutes (1977). After judgment, however, Johnson persuaded the trial judge that section 713.-29 was applicable and secured an award for attorney’s fees well in excess of the 12.5% limitation imposed by section 627.756. On appeal the First District reversed the award of attorney’s fees on the authority of Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978).

The primary question is which statute applies when a contractor and his surety are sued for nonpayment under a construction contract. A related question is the award of attorney’s fees for the enforcement of a mechanic’s lien under chapter 713, Florida Statutes (1977).

Section 627.756 relating to the award of attorney’s fees for the enforcement of construction bonds was originally codified as section 627.0905 in 1959. Section 713.29 relating to the award of attorney’s fees for the enforcement of a lien became law in 1963. It would seem that any conflict between these two statutes should be resolved in favor of the later legislative enactment. Such resolution, however, requires the presence of two initial elements: a conflict between the two statutes and the lack of any legislative action to clarify the difference. Both elements are lacking in the present suit.

Section 627.756 applies to suits brought by owners, subcontractors, laborers, and materialmen against insurers under payment or performance bonds written to indemnify such persons against pecuniary loss by breach of a building or construction contract. It specifically fails to mention actions to enforce equitable or statutory liens in favor of these parties.

Section 713.29, on the other hand, is expressly limited to “any action brought to enforce a lien under part I [Mechanic’s Liens].” This seems to indicate the legislature’s intent to limit section 713.29 to the enforcement of liens arising under part I of chapter 713. Sections 713.02(6) and 713.23 of part I, relating to payment bonds, however, remove from part I owners who are protected by the required contractor’s payment bonds. See Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976). Therefore, the provisions of part I relating to liens would not apply to an action on the bond.

In 1977 the legislature amended both of these statutes in a single piece of legislation so that the intent to harmonize them is self-evident. Prior to 1977 section 627.756 contained two subsections. The first of these related to the type of bond, either performance or payment, and the percentage of contract price required to be covered. The 1977 amendment completely deleted the first subsection, leaving former subsection (2) as the present statute. The statute as thus amended relates solely to bonds for construction contracts and not to the enforcement of statutory liens.

With the same pen the legislature broadened section 713.29, allowing attorney’s fees in both the trial and appeal stages and equating such fees to those allowed in equitable actions. No changes enlarged this section to cover attorney’s fees for the prosecution of a construction bond. The clear meaning of addressing both sections in the same legislation is that the legislature intended each to be a separate action.

The action to allow for attorney’s fees for enforcing surety bonds has been an effective device since its introduction. See Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669 (5th Cir. 1963), cert. denied, 377 U.S. 909, 84 S.Ct. 1169, 12 L.Ed.2d 178 (1964); CFW Construction Co., Inc. v. Richardson Electric Co., 364 So.2d 854 (Fla.2d DCA 1978); Continental Casualty Co. v. Krauss Air Conditioning, Inc., 184 So.2d 485 (Fla.2d DCA 1966). Clearly, if the legislature had intended to include the award of attorney’s fees for the recovery on construction bonds in section 713.29, it could have done so when that section was first enacted or during the later amendment after several of the conflicting decisions had been decided.

The legislature’s intent behind these two sections is clear. If a plaintiff files suit under part I of chapter 713 to enforce a lien, he may recover reasonable attorney’s fees. There is a more involved notification and litigation process to enforce these statutory liens than when suit is on a simple indemnity contract. If a plaintiff sues to enforce his rights under a construction bond, such suit is normally brought against the main contractor and surety for breach of contract, and relief is limited to that granted in section 627.756. The determination of which statute controls should depend on the main cause of action. If the owner of the project is exempted from liability under part I of chapter 713 because of the contractor’s bond, then the plaintiff’s main cause of action will be on the bond even if a claim of lien is added in the alternative.

Johnson, arguing that reasonable legal fees are not limited by the statutory 12.5% cap, relies on the rationale adopted in Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla.3d DCA 1972), and its progeny. In Midway the court construed the mechanic’s lien law liberally so as to effectuate its purpose of giving materialmen and laborers the greatest possible protection. It also based the decision on the specific wording of the surety contract. Neither of these reasons, however, provides a sound basis for construing section 713.29 to control in the face of section 627.756.

The First District’s per curiam opinion in the present case cites Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978), as controlling. In Snead the court faced a similar factual situation and applied section 627.756. It described the interaction of several provisions of the insurance code as follows:

We agree with appellants that Section 627.756(2) is applicable. Section 624.13 of the Insurance Code states that the code’s provisions regarding types of insurance, insurers or as to “a particular matter” prevail over all other such provisions. Sections 627.428 and 627.756 are within the. insurance code, and Section 627.756 deals specifically with suits on performance or payment bonds against surety insurers to construction contracts. By mandate of Section 624.13, then, attorney’s fees in suits by sub-contractors like appellee against a surety on a performance or payment bond are governed by the specific provisions in 627.756.

Id. at 594.

All five district courts of appeal have been asked to resolve this conflict in the statutes. At one time, three of those courts held that section 713.29 would control the present action. Since that time, two of those courts have reversed their holdings and joined the remaining two in holding that, when suit is brought against the contractor and surety for enforcement of the surety bond, attorney’s fees are limited to the 12.5% maximum imposed by section 627.756. The distinction is that section 713.29 relates to direct actions against the owner and the property through the legislatively created mechanic’s lien statutes.

In Bankers & Shippers Insurance Co. of New York v. AIA Insulation Industries, Inc., 390 So.2d 734 (Fla. 4th DCA 1980), the subcontractor filed to foreclose his mechanic’s lien and for breach of contract. The Fourth District found the plaintiff’s recovery for breach of contract rather than lien and stated:

It would seem that, if the awards to the subcontractors resulted from the perfection and enforcement of mechanics liens, Section 713.29 should apply and the award of the attorneys’ fees was proper. On the other hand, if the awards to the subcontractors arise out of a claim against the payment bond, the attorney’s fee would be controlled by Section 627.-756(2), Florida Statutes (1977).

Id. at 738. The court went on to comment on the effect of section 713.23 on section 713.29.

Section 713.29 provides for a reasonable attorney’s fee “in any action brought to enforce a lien under Part I” of Chapter 713. Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to 713.23 is to exempt the owner and the property from the provisions of Part I. The lien claimants [sic] cause of action is upon the bond rather than to enforce a lien under Part I. Thus, Section 627.756(2) should control the attorney’s fees. Therefore, we find it is error to award attorneys’ fees under Section 713.29, Florida Statutes (1977).

Id

In the present case subcontractor Johnson sued Englishtown, the general contractor, and its surety, Balboa Insurance Company, for nonpayment under the subcontractor’s contract. Therefore, the main cause of action being the breach of contract and enforcement of the surety contract, Johnson is restricted to his section 627.756 award for attorney’s fees. Further, in the complaint Johnson claimed entitlement to attorney’s fees only under the provisions of section 627.756. It was not until the post-judgment motion to tax costs and award reasonable attorney’s fees that section 713.29 was raised.

No attorney’s fees can be granted except as provided by contract or statute. The statutory basis for attorney’s fees against a company writing payment or performance bonds is provided by section 627.756. Given the authority to sue and collect, one must be bound by the legislative limitations placed thereon.

The district court opinion in the instant case is approved, and that in Midway is disapproved.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . § 627.756(2) provided as follows:
      (2) Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the Laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiffs attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), nor shall it be less than $100 where the judgment or decree is for more than $500 nor less than $50 where the judgment or decree is $500 or less. Such owners, subcontractors, laborers and material men shall be deemed to be “insureds” or “beneficiaries” for the purposes of this section.

      . § 713.29 reads as follows:
      In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.

      . Ch. 77-353, §§ 11, 17, Laws of Fla.

      .The court in Midway relied upon the principle of liberal construction enunciated in Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). The legislature abrogated that rule by enacting § 713.37, Fla.Stat. (1979). Ch. 77-353, § 15, Laws of Fla.

      . Sainer Constructors, Inc. v. General Elec. Co., 352 So.2d 1237 (Fla.2d DCA 1977); Travelers Indem. Co. v. Howell & King, Inc., 336 So.2d 1 (Fla. 4th DCA), cert. denied, 341 So.2d 1086 (Fla.1976); Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla.3d DCA 1972).

      . Bankers & Shippers Ins. Co. of New York v. AIA Insulation Indus., Inc., 390 So.2d 734 (Fla. 4th DCA 1980) (receding from Travelers) and CFW Constr. Co. v. Richardson Elec. Co., 364 So.2d 854 (Fla.2d DCA 1978).

        . Hegeman & Harris Co. v. All State Pipe Supply Co., 400 So.2d 1245 (Fla. 5th DCA 1981); Allied Gen. Contractors v. Superior Asphalt Co., 397 So.2d 727 (Fla. 5th DCA 1981); Snead Constr. Corp. v. Langerman, 369 So.2d 591 (Fla. 1st DCA 1978). Thus, the Third District now stands alone in its solution to the instant problem.

      . As noted earlier, § 627.756(2) is the predecessor of current § 627.756.


author: ALDERMAN, Justice. SUNDBERG, Chief Justice,

text:
    In the Interest of R. J. B., a child, Petitioner, v. STATE of Florida, Respondent, In the Interest of D. J. P., a child, Petitioner, v. STATE of Florida, Respondent, In the Interest of D. A. D., a child, Petitioner, v. STATE of Florida, Respondent.
    Nos. 59887, 59888 and 59968.
    Supreme Court of Florida.
    Jan. 14, 1982.

      Richard L. Jorandby, Public Defender and Cherry Grant, Asst. Public Defender, West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Edwin H. Duff, III and Phillip D. Havens, Asst. Attys. Gen., Daytona Beach, for respondent.
   ALDERMAN, Justice.

We have for review the decisions of the District Court of Appeal, Fifth District, in In the Interest of R. J. B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980); D. A. D. v. State, 389 So.2d 351 (Fla. 5th DCA 1980); and In the Interest of D. J. P. v. State, 388 So.2d 1094 (Fla. 5th DCA 1980), holding that it was without jurisdiction to consider interlocutory appeals from the juvenile court’s orders waiving juvenile jurisdiction. This holding expressly and directly conflicts with G. A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980), wherein the First District held that an interlocutory appeal may be taken from an order waiving jurisdiction. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1980). Jollie v. State, 405 So.2d 418 (Fla.1981).

The determinative issue before us is whether the district court erred in dismissing the direct interlocutory appeals from the juvenile waiver orders on the basis that it lacked jurisdiction. Since we agree with the Fifth District that it was without jurisdiction to consider these appeals, we do not reach the second issue posed by petitioner R. J. B. as to whether the trial court erred in waiving juvenile jurisdiction of R. J. B. and certifying him as an adult without having held a hearing to determine Competency-

Petitioners, three juveniles, separately appealed orders of the trial court waiving juvenile jurisdiction and certifying them for trial as adults. The Fifth District dismissed the appeals on the basis that these waiver orders were not final orders from which appeal would lie. It reasoned that Florida Rule of Appellate Procedure 9.140(b) governs here and that this rule does not provide for interlocutory appeals of orders of this nature. The district court acknowledged sections 39.09(2)(e) and 39.14(1), Florida Statutes (1979), but held that these statutes were ineffective to provide appellate review of waiver orders.

We agree. It is not clear that the legislature intended to create a right of interlocutory appeal from waiver orders. Section 39.09(2)(e) merely provides that a waiver order shall be reviewable pursuant to section 39.14, and section 39.14(1) provides that appeal may be had within the time and manner prescribed by the appellate rules. Even if the legislature had intended to create a right of interlocutory appeal from waiver orders, such enactment would have been void because the Florida Constitution does not authorize the legislature to provide for interlocutory review. State v. Smith, 260 So.2d 489 (Fla.1972).

This Court is vested by the constitution with the sole authority of deciding when appeals may be taken from interlocutory orders. Article V, section 4(b)(1) expressly provides that district courts of appeal “may review interlocutory orders in such eases to the extent provided by rules adopted by the supreme court.” This Court has not adopted any appellate rule which permits the type of interlocutory appeal sought by petitioners.

Furthermore, we hold that Florida Rule of Juvenile Procedure 8.220(f) does not create a right to interlocutory appeal. This rule provides:

(f) After a hearing at which a judge enters an order waiving jurisdiction and certifying a child for trial as an adult, adjudicating a child delinquent, dependent, or ungovernable, or a disposition order, he shall forthwith inform the child, his parents or custodians concerning the right of appeal therefrom, including the time allowed by law for taking an appeal.

By this rule, we did not create an immediate right to appeal from the waiver order before the juvenile is transferred into the criminal justice system. Rather, in promulgating this rule, we only intended that a child, his parents, or custodians be informed that there was a right to appeal the waiver order. In the absence of an appellate rule providing for interlocutory appeal, this rule means that the child, his parents, or custodians should be informed of the child’s right to appeal the waiver order in the event there is a final judgment adjudicating guilt or an order granting probation, whether or not guilt has been adjudicated. The First District’s decision in G. A. v. State is disapproved insofar as it holds that Florida Rule of Juvenile Procedure 8.220(f) creates a right of interlocutory appeal.

We need not discuss the merits of permitting such interlocutory appeals which are alluded to by the First District in G. A. v. State or the merits of not permitting such interlocutory appeals. It is sufficient to say that this Court has not adopted a rule allowing interlocutory appeal of orders of the juvenile court waiving juvenile jurisdiction.

Accordingly, the decision of the District Court of Appeal, Fifth District, is approved.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

SUNDBERG, Chief Justice,

dissenting:

For the reasons expressed in G. A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980), I would approve that decision and disapprove the decision in the instant cases.

ADKINS, J., dissents and concurs with SUNDBERG, C. J.

      .Florida Rule of Appellate Procedure 9.140(b) provides:
      (b) Appeals by Defendant.

      (1) Appeals Permitted. A defendant may appeal:
      (A) A final judgment adjudicating guilt;
      (B) An order granting probation, whether or not guilt has been adjudicated;
      (C) Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
      (D) An illegal sentence; and
      (E) A sentence when required or permitted by general law.
      A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularly the point of law being reserved.

      . Section 39.09(2)(e) provides:
      (e) Any decision to transfer for criminal prosecution shall be in writing and shall include consideration of, and findings of fact with respect to, each of the foregoing criteria. The court shall render an order including a specific finding of fact and the reasons for a decision to impose adult sanctions. The order shall be reviewable on appeal pursuant to s. 39.14 and the Florida Appellate Rules.

      . Section 39.14(1) provides:
      (1) Any child, and any parent or legal custodian of any child, affected by an order of the court may appeal to the appropriate district court of appeal within the time and in the manner prescribed by the Florida Appellate Rules.


text:
    THE FLORIDA BAR, Complainant, v. Andrew C. B. BARON, Respondent.
    No. 60434.
    Supreme Court of Florida.
    Jan. 14, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, David G. McGunegle, Branch Staff Counsel and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    Andrew C. B. Baron, in pro. per.
   PER CURIAM.

In this bar grievance proceeding the referee found respondent guilty of three counts of violating the Code of Professional Responsibility. That finding is predicated upon respondent’s failure to timely respond to request for admissions propounded to him on March 27, 1980. Baron filed a response on February 4,1981, one day prior to the scheduled final hearing. The referee heard testimony from Baron in “mitigation.”

The referee has recommended a one-year suspension, payment of costs, and probation for six months to three years. The bar seeks a three-year suspension. Baron has filed no petition for review of the referee’s report.

Though sufficient to sustain a finding of violations of the Code of Professional Responsibility, Baron’s acts in these instances were not egregious. These acts, even considering past disciplinary actions, do not warrant a penalty in excess of that recommended by the referee. Since Baron has not challenged the referee’s report, we must assume he takes no issue with it.

We adopt the findings and recommendations of the referee. Respondent Andrew C. B. Baron is suspended from the practice of law for one year and thereafter until he proves rehabilitation. The suspension shall be effective immediately. Upon readmission he shall be under supervisory probation for a period of six months. He shall pay costs in the amount of $203.00.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.

ADKINS and BOYD, JJ., concur in part and dissent in part, and would affirm guilt but would request briefs on penalty.

      .Count I: DR 6-101(A)(3) and 7-101(A)(2).
      Count II: DR 5-105(A), 5-105(B), and 2-106(A).
      Count III: DR 1-102(A)(4) and Fla.Bar Integr. Rule, art. XI, rule 11.02(4).

      . One continuance had already been granted.

      . Florida Bar v. Baron, 392 So.2d 1318 (Fla.1981); Florida Bar in re Baron, 342 So.2d 505 (Fla.1977).


text:
    THE FLORIDA BAR. In re C. Archie CLEMENT.
    No. 61344.
    Supreme Court of Florida.
    Jan. 14, 1982.

      Roberta J. Fox, Bar Counsel, Tampa, for complainant.
    C. Archie Clement, in pro. per.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition states:

1.[Respondent] probated the Estate of Louise Brest, Deceased, which pended in Probate in excess of ten years and was finally terminated by an Order of Final Discharge on the 29th of January 1981, signed by the Honorable Richard Miller, Circuit Judge, Pinellas County, Florida.
2. The Florida Bar takes the position that your [Respondent] is guilty of professional misconduct in that he allowed the Estate to remain open for an undue length of time and charged excessive fees.
3. [Respondent] freely and voluntarily submits this Petition to resign pending disciplinary proceedings, with leave to reapply for readmission at a time deemed proper.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved and C. Archie Clement’s name is stricken from the roll of attorneys in the State of Florida effective this date.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.


author: JOANOS, Judge. JOANOS, Judge.

text:
    Rose M. WATSON, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. YY-325.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Rehearing Denied Jan. 18, 1982.
    William F. Kachergus, Jacksonville, for appellant.
    William Lee Allen, Jacksonville, for ap-pellee.
   JOANOS, Judge.

After going through arbitration and obtaining a favorable decision, Watson’s arbitration award was vacated, in part, and modified, in part, by the circuit court. Watson now appeals the circuit court decision. We affirm the circuit court’s decision.

Watson had worked as a teacher’s aide in Duval County since 1969. In January 1979 she applied for three personal leave days, but was notified after she returned to work that she would not receive pay for two of the days.

The bargaining agreement between Du-val Teachers United and the Duval County School Board for 1978/79 provides for a four step grievance procedure in Article 11. After proceeding through Steps 1, 2 and 3, on July 31, 1979 Watson filed two letters to initiate Step 4 grievances (essentially, an appeal in writing to the School Board). In one letter, Watson sought payment for the two personal leave days as well as the removal from her personnel file of a letter written by her principal and dated January 26, 1979. According to Watson, the principal’s memo evaluated her falsely based upon the personal leave incident. Watson’s second grievance made a similar complaint concerning an evaluation in her personnel file dated March 25,1979. The Board voted to pay Watson for the two days’ leave, but ruled that neither of the two items in her personnel file were “grievable” under the Board/Union agreement. Article 6, Section 5 of the agreement deals with the Personnel Files and provides in part: .

Upon receipt of any communication involving accusations or otherwise defamatory material against an employee, the Personnel Division shall . . . notify the employee of his or her right to respond .... Should the employee dispute the contents of a written communication by presenting competent evidence or substantial information and in the event that there is not sufficient factual evidence that the contents are true, factual, and timely . . . the correspondence material shall be withdrawn from the assessment file and destroyed.

Despite this provision, the Board viewed the two letters as evaluations, not “communication[s] involving accusations or otherwise defamatory material.”

Sometime after the original grievances were filed, Watson was notified that her contract would not be renewed for the 1979/80 year, beginning in September. The Step 4 procedure (initiated July 31st) took an unusually long period of time, so it wasn’t until December 3, 1979 that Watson made her demand for arbitration. Under “Remedy Sought,” Watson listed:

(1) Cause the disputed material to be removed and destroyed according to the contract provision on Personnel File,
(2) Immediate reinstatement of Rose M. Watson to a comparable position as a Follow-Through teacher’s aide.
(3) Compensatory pay as provided in the latest contract with the Duval County School Board for teacher aide retroactive to August 1, 1979.

The Board was notified of the arbitration demand but refused to participate. The Board’s position, explained in a letter, was that the “disputed material” in the personnel file was not arbitrable subject matter under the agreement. Nonetheless, an arbitrator was selected by the American Arbitration Association. The arbitrator first determined that he had jurisdiction to decide the “arbitrability” of the claim. The arbitrator found that the grievance was arbitrable under the Art. 6, § 5 of the agreement as a dispute over the factual basis for the letters in Watson’s personnel file. After receiving documentary evidence and testimony, the arbitrator concluded that “the documents were totally or partially untrue, lacked factual basis, . . . and [were] unwarranted.” Pursuant to this finding, the arbitrator ordered that both the January 26th letter and March 25th evaluation be removed from the file. In addition, the arbitrator ordered the removal of four other documents in Watson’s file dated February 13, February 22, March 20, and April 5, 1979.

Finally the arbitrator found that these improper documents and erroneous evaluations entered into the decision not to renew Watson’s contract. Therefore, the arbitrator ordered that Watson be offered a contract for 1979/80.

The Board moved in circuit court to have the arbitration award vacated. Citing § 682.13, Florida Statutes (1979) the Board stated that the arbitrator exceeded his power (1) when he held the evaluations to be arbitrable; (2) when he ordered removal of the four documents not previously subject to the grievance procedure or specifically challenged by Watson in her demand for arbitration; and (3) when he ordered that Watson be offered an annual contract. In addition, the Board stated that there was no agreement or provision for arbitration of the subject matter. Watson denied these contentions and counter-moved for confirmation of the award. The court issued an order vacating in part and modifying the arbitration award finding that the arbitrator exceeded his powers in removing the four other documents because no grievance was filed with respect to those documents. The court also vacated the portion of award requiring that Watson be offered a contract. The removal of the January 26 and March 25 documents was confirmed.

The circuit court was correct in ordering removal of the four letters not previously challenged in the grievance procedure. Watson has argued that it was not necessary to file a separate grievance for each document she wished removed from her file because they all related to a single incident. We agree that it was not necessary that Watson proceed through each step of the grievance procedure as more and more letters accumulated in her file concerning the same incident challenged in the initial grievance. We do not agree, however, that the disputed documents did not need to be specified during some point in the grievance procedure, assuming that the letters were added to her personnel file while the grievance was still pending.

As ground for filing the grievance, Watson relied on a provision in the bargaining agreement allowing an employee to seek removal from her personnel file of “any communication involving accusations or other defamatory material . ... ” Under this provision, the employee must submit evidence that the communication contains false material. Thus, a separate determination must be made as to whether the document is appropriate for grievance and, if so, whether it contained false accusations. Since removal and destruction of the document is the remedy set forth in the agreement, it is obvious that each document must be separately identified at some point so that it could be removed from the file if found to be false.

As long as the grievance procedure was still pending, Watson should have notified the Board of all of the letters in her file involving the same factual dispute which she wished to have removed. This would have given the Board the opportunity to reconsider its position on whether the letters were “communications” subject to grievance, and if so, whether the letters contained defamatory material.

Watson has argued that listing each challenged letter would be unduly burdensome, yet no such “burden” has been shown in this case. On July 31, 1979, Watson notified the Board that she sought removal from her file of letters dated January 26th and March 25th, but did not mention a challenge to two letters dated in February, one in March, and one “in April (the four letters removed by the arbitrator.) Watson does not argue that she was unaware of these last four letters as of July 31, 1979, and no excuse has been offered as to why they were never included in her grievance to the Board.

Even if Watson’s failure to request the Board to remove all six letters were excusable, the lack of specificity in her demand for arbitration would also support the circuit court’s decision. In the section denoted “Relief Sought,” Watson merely requested that the “disputed material” be removed. Although the Board’s decision not to arbitrate was based upon a premise later held to be incorrect, the Board was never at any time put on notice that Watson wanted six, instead of two letters expunged from her personnel file. In making their decision not to arbitrate, the Board was aware of the risk that the arbitrator would grant the remedies requested by Watson; they did not accept the risk that the arbitrator would award relief that was never requested. Since the Board was not notified that the “disputed material” included more than the two letters challenged at the grievance level, they were not given the opportunity to object to or defend against removal of the four additional letters not specifically identified.

The arbitrator’s decision to order reinstatement was based upon the conclusion that all six letters may have contributed to the failure to renew Watson’s contract. Watson has made no argument on appeal that she was entitled to reinstatement to her job even if only two of the six letters were removed from her file. We therefore conclude that such an argument has been waived.

AFFIRMED.

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

ON PETITION FOR REHEARING

JOANOS, Judge.

In light of the recent decision of our sister court in School Board of Seminole County v. Cornelison, 406 So.2d 484 (Fla. 5th DCA 1981), we recede from any portion of our opinion which would suggest that the arbitrator’s order to renew the annual contract of a non-tenured employee was an appropriate remedy. Based upon the rationale of Cornelison, the Circuit Court’s decision vacating the arbitrator’s award of reinstatement is affirmed.

In all other respects the petition for rehearing is denied.

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

      . Section 682.13 provides, in pertinent part:
      —Vacating an award.—
      (1) Upon application of a party, the court shall vacate an award when:

      (c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.

      (e) There was no argument or provision for arbitration subject to this law, unless the matter was determined in proceedings under § 682.03 and unless the party participated in the arbitration hearing without raising the objection.
      But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

      . Of course, if letters containing the same allegedly false material were placed in her personnel file after the grievance procedure terminated, then it would be futile to initiate the whole process again. At that point, the more recent documents could be added to the relief requested in arbitration.


author: CAMPBELL, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Leo DECKER, Carl Shepard and Dora J. Shepard, his wife, Appellees.
    Nos. 80-2206, 81-809.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Rehearing Denied Jan. 12, 1982.

      Alan E. DeSerio, Appellate Atty., Jeff Savlov, Trial Atty., H. Reynolds Sampson, General Counsel, Department of Transportation, Tallahassee, for appellant.
    H. Rex Owen and Bruce C. Crawford of Owen & McCrory, St. Petersburg, and Thomas M. Gallen of Miller, Gallen, Kaklis & Venable, Bradenton, for appellees.
   CAMPBELL, Judge.

The State Department of Transportation (DOT) appeals the damages awarded for a temporary construction easement imposed on appellees’ property, parcel 704, along with the attorney’s fees awarded to appel-lees’ trial counsel.

In its petition for condemnation, DOT specifically requested no more than six feet along one border of the parcel, adjacent to State Road 683 (U.S. 301) “for the purpose of tying in and harmonizing” the property with proposed road construction. Located on the parcel was an ongoing truss business which had been in existence approximately sixteen years. Appellees responded and the trial court entered an order of taking. This order adopted verbatim the description of the condemned estate offered by DOT which concluded:

THIS EASEMENT is granted upon the condition that the sloping and/or grading upon the above land shall not extend beyond the limits outlined above, and that all grading or sloping shall conform to all existing structural improvements within the limits designated, and all work will be performed in such manner that existing structural improvements will not be damaged.
THIS EASEMENT shall expire upon the completion of the construction of the said road. .. .

At the trial for damages, DOT proffered the testimony of its expert engineering witness who interpreted the construction plans and a right-of-way map which- had been admitted into evidence, partially for the purpose of showing the uses to which the parcel would be put. Appellees objected to this testimony and the trial court refused to. allow this witness to testify regarding the proposed use of the property, but stated it would allow DOT’s petition to speak for itself. A proffer was made of additional testimony to be offered by this expert during which he explained DOT’s policy of providing continuous access to businesses when a construction easement is taken, relying on the policy set forth in DOT’s Standard Specification for Road and Bridge Construction Manual of 1977. He further indicated that there would be no borrow pits, drainage ditches, service roads, or any other construction on the six foot easement, according to the plans entered into evidence, but the parcel would be subject only to grading necessary to harmonize the property adjacent to the construction with the new pavement. The trial court again excluded the testimony in favor of reliance on DOT’s petition.

Thereafter, DOT called its expert appraisal witness to offer a fair market value estimate of the interest taken in the parcel. The trial court granted appellees’ motion to strike all of this testimony on the ground that it was based on the unsupported premise that the construction would not damage existing structures on the remainder of the property. DOT did not offer any evidence of business damages because of its premise that there would be no such damages.

Appellees presented the testimony of an attorney specializing in real property, a land surveyor, and a business damage expert, each of whom testified that none of the restrictive language in the order of taking, limiting the state’s use of the parcel, was binding on DOT. According to these witnesses, the areas in front of the buildings adjacent to the easement were subject to any number of construction activities which could totally eliminate ingress and egress to the business for a substantial length of time. This testimony was in direct conflict with the proffered but excluded testimony of DOT’s expert engineering witness.

Since the only evidence of the easement’s value was that offered by the landowners, the trial court chose to grant a directed verdict on the fair market value of the interest taken. Severance and business damages were left as questions of fact for the jury to determine. DOT appeals from the final judgment awarding the landowners a total of $776,000 for the fair market value of the easement, severance and business damages. We reverse and remand for a new trial.

Appellant’s counsel raises numerous points on appeal, three of which merit discussion. First, DOT contends the trial court erred in excluding all of the testimony given by its engineering and appraisal witnesses because they based their opinions on construction plans already entered into evidence and on DOT policy, as described in the official specification manual promulgated by the Department. Second, appellant argues it was error for the lower court to grant a directed verdict on the fair market value of the easement taken. The final issue to be considered is the attorney’s fees awarded below.

The trial court properly admitted the plans and specifications for the purpose of providing a positive declaration from DOT of the manner in which the condemned property will be utilized. Doty v. City of Jacksonville, 106 Fla. 1, 142 So. 599 (1932). However, we agree with appellant that once this evidence was admitted, DOT was bound by it and it was proper for the DOT witnesses to base their valuation estimates on the use of the easement as limited by the plans and specifications. Central & Southern Florida Flood Control District v. Wye River Farms, Inc., 297 So.2d 323, 327 (Fla. 4th DCA 1974), cert. denied 310 So.2d 745 (Fla.1975). Appellees argue that there remained ambiguities even with the admission of the plans and specifications because the interpretations by DOT’s witnesses made it unclear what rights were acquired in front of the buildings along the easement. There was also conflicting evidence presented regarding the commencement and completion dates of the highway project. Nevertheless, conflicts in testimony did not give the trial judge the discretion to exclude all of DOT’s expert testimony and any challenge to the experts’ premises should have come from appellees on cross-examination. See City of St. Petersburg v. Vinoy Park Hotel Co., 352 So.2d 149, 152 (Fla. 2d DCA 1977) (“[I]t is not necessary that the city establish or show precisely when the proposed use would be developed or come into being.”)

Notably, the landowners would not be without a remedy if, after damages are awarded in this taking, the Department failed to adhere to the construction easement limitations. As the Wye River Farms court stated:

If a project is not constructed in accordance with plans and specifications received in evidence, the remedy of the landowner is to come back into court and claim additional damages. Poe v. State Road Department [Fla.], 1st D.C.A. 1961, 127 So.2d 898; State Road Department v. Lewis, [Fla.], 1st D.C.A. 1963, 156 So.2d 862.

297 So.2d at 329. Facts similar to this ease were examined in Bryant v. Division of Administration, State Department of Transportation, 355 So.2d 841 (Fla. 1st DCA 1978). In Bryant, the landowners argued that the trial court erred in permitting the condemnors to present evidence of DOT’s turnout and dropped curb policy to explain how the plans and specifications would in fact be implemented. Citing Wye River Farms, the Bryant court held that once the plans were entered into evidence, the con-demnors were bound by them, subject to explanations by the condemnors’ expert witness of how the project would be constructed. 355 So.2d at 842. In addition, the landowners challenged the trial court’s denial of their motion for a directed verdict on business damages, arguing that their expert had established a business damage figure which was left unrebutted by the condemnors. The First District Court of Appeal held that even though the valuation offered by the landowners’ expert could be considered as a maximum, the jury could properly render a verdict less than that maximum even without rebutting testimony, as it is within the jury’s province to determine the weight and credibility to be given to the expert’s testimony. Id. at 843. See Behm v. Division of Administration, State Department of Transportation, 336 So.2d 579 (Fla.1976) (Florida’s constitution mandates a jury’s determination of compensation in eminent domain.)

Applying the Wye River Farms doctrine to the instant case, we find it was error to exclude DOT’s engineering and appraisal witnesses because their proffered testimony was based on their opinions as to the proposed construction according to the plans and specifications as restricted by the DOT policy manual. We further hold that, according to Behm and Bryant, it was error to grant a directed verdict on the fair market value of the easement merely because DOT’s appraisals had been stricken and the only estimates left in evidence were those offered by the appellees.

In a consolidated case, DOT appeals the award of $200,000 to appellees’ attorneys at the trial court level. Since we are remanding this case for a new trial, we reverse this award. However, we grant attorney’s fees to appellees on this appeal in an amount to be set by the trial court, noting that section 73.131(2), Florida Statutes (1979), mandates the award of such attorney’s fees when the petitioner (condemnor) takes an appeal.

REVERSED and REMANDED.

BOARDMAN, Acting C. J., and GRIMES, J., concur. •


author: DOWNEY, Judge. PER CURIAM. ANSTEAD, Judge,

text:
    William Joseph RENAUD III, Appellant, v. STATE of Florida, Appellee.
    No. 80-2130.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    On Motion for Rehearing Feb. 10, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, William Renaud III, was found guilty by a jury of robbery with a weapon and sentenced as an habitual offender to life imprisonment.

Appellant contends, in part, that the trial court erred a) in refusing to instruct the jury on penalties which may be imposed for lesser included offenses and b) in sentencing appellant as an habitual offender.

We reject appellant’s first contention because there is no requirement that the jury be instructed on the maximum penalties for appropriate lesser included offenses under the crime charged. If either the State or defendant requests it, Florida Rule of Criminal Procedure 3.390(a) requires the court to charge the jury on the maximum and minimum sentences which may be imposed “for the offense for which the accused is then on trial.’’ That has been interpreted to mean the offense for which the defendant is charged in the indictment or information. James v. State, 393 So.2d 1138 (Fla. 3rd DCA 1981); see also Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974); Mitchell v. State, 304 So.2d 466 (Fla. 3rd DCA 1974); Lewis v. State, 399 So.2d 473 (Fla. 4th DCA 1981). We see no reason to deviate from the holding in those cases.

Section 775.084(3)(d), Florida Statutes (1979), authorizes the trial court to impose an extended term of imprisonment upon a person found to be an habitual offender under statutory guidelines, when the court finds such a sentence is necessary for the protection of the public from the defendant’s further criminal activity. The record reflects the trial judge followed the statutory requirements in meting out the extended term of imprisonment. The trial judge found that appellant had been convicted of over twenty felonies, served three separate terms in prison, and committed the robbery in question “only some three months after his release from prison in Connecticut.” Finally, the trial judge noted “Although, prior to his latest criminal episode, there does not appear to be any crime of violence, the Court finds that it is necessary to protect the public from this habitual criminal activity, ...” Thus, this would appear to present a classic case for implementation of the habitual offender statute.

We have considered all of appellant’s other contentions and find no error demonstrated.

AFFIRMED.

ANSTEAD and DELL, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is denied.

DOWNEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring to denial of rehearing:

I agree that the appellant’s motion for rehearing should be denied, but, upon reflection I also agree with appellant’s suggestion that we should certify the issue involving instructions on penalties as we did in Lewis v. State, 399 So.2d 473 (Fla. 4th DCA 1981).


author: SHIVERS, Judge.

text:
    SEMINOLE INN and U. S. Fidelity & Guaranty Company, Appellants, v. Barbara RAY, Appellee.
    No. ZZ-426.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    Rehearing Denied Feb. 1, 1982.
    Walter E. Beisler, of Beisler & Wells, West Palm Beach, for appellants.
    Richard Joseph Saliba, of Grail & Saliba, Vero Beach, for appellee.
   SHIVERS, Judge.

The employer/carrier appeal from a workers’ compensation order awarding claimant 40% permanent partial disability benefits of the body as a whole due to loss of wage-earning capacity. We reverse the award of permanent partial disability benefits because the record shows the claimant did not conduct a good faith job search.

The 30 year old claimant suffered a com-pensable low-back injury on March 11,1978. Treating physician Dr. Dale testified that claimant reached maximum medical improvement on March 6, 1980, with a 20% anatomical impairment. He testified that the claimant could not work as a waitress or at a job that required her to be on her feet all day, confined to one area, or at a job requiring significant lifting. Dr. Moll examined the claimant and testified that she had a 10% anatomical impairment and should not lift weights over 25 pounds. In September 1980 the claimant testified that she was unable to do any repetitive bending or lifting and could not sit or stand for prolonged periods of time. She testified that she sought work without success and intended to return to Missouri for possible employment following the conclusion of her workers’ compensation case.

On December 22, 1980, the deputy commissioner accepted Dr. Dale’s 20% anatomical rating and awarded the claimant 40% permanent partial disability benefits of the body as a whole due to loss of wage-earning capacity. Additionally, he ordered the employer/carrier to make all compensation payable jointly to the claimant and her attorney and authorized her attorney to retain 20% of the compensation benefits in a trust account for application toward an attorney’s fee later determined to be due.

The deputy commissioner erred in awarding 40% permanent partial disability benefits due to loss of wage-earning capacity because there is no competent, substantial evidence demonstrating that claimant conducted a good faith job search. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975); Walker v. Electronic Products and Engineering Company, 248 So.2d 161 (Fla.1971). Claimant testified she has not sought employment since September 10, 1980. She testified that she was seeking a job as a waitress and “might” have one lined up in Missouri once her workers’ compensation claim was cleared up. However, Dr. Dale testified that claimant was not medically capable of returning to work as a waitress. Additionally, claimant stated she had “checked” the newspaper ads, and talked to people at K-Mart and Thriftway about possible employment although she submitted no employment application at K-Mart and did not think she was capable of performing the job at Thriftway. She also looked for other work in Missouri but could not or did not indicate where she actually applied for work or whether there were positions available which she could perform. In fact, the whole tenor of her testimony indicates she has been waiting for a job to come along rather than actually seeking work. Claimant’s cavalier approach to testing her ability to compete in the open labor market is clearly insufficient to meet the work search requirement for showing a loss of wage-earning capacity. Therefore, the 40% permanent partial disability award due to loss of wage-earning capacity is reversed and remanded to the deputy commissioner with directions to award a permanency rating no higher than the accepted 20% anatomical impairment rating assigned by Dr. Dale.

The deputy commissioner further erred in requiring the employer/carrier to make compensation checks payable to both the claimant and her attorney and authorizing her attorney to retain 20% of all benefits paid in trust to be applied toward the amount of an attorney’s fee, to be determined at a later date. There is no statutory or case law authority to support this portion of the order. Section 440.20(1), Florida Statutes (1977), directs that compensation shall be paid directly to the entitled person. Section 440.22, Florida Statutes (1977), provides:

No assignment, release, or commutation of compensation or benefits due or payable under this chapter except as provided by this chapter, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived.

Here, since the claimant was injured in 1978, it is the employer/carrier and not the claimant, who will be ultimately responsible for paying claimant’s attorney’s fees. Because the deputy commissioner has not yet determined the amount of the attorney’s fee to be awarded to claimant’s counsel, the claimant is being deprived of compensation during the period in which her attorney is authorized to retain 20% of all compensation benefits in trust.

Since a workmen’s compensation claimant’s benefits are limited, allowing an attorney or other person to obtain a portion thereof from a claimant, particularly when it is a substantial sum, would thwart the public policy of affording the claimant necessary minimum living funds and cast the burden of support for that person on society generally. Samaha v. State, 389 So.2d 639, 640 (Fla.1980).

Even under the new attorney’s fee statute, Section 440.34, Florida Statutes (1979), requiring a claimant to pay his attorney’s fees with limited exceptions and expressly providing for an attorney’s fee lien upon compensation payable to the claimant, this court has held that an employer/carrier are not obligated to send compensation checks jointly payable to the claimant and his attorney until the deputy commissioner has approved a reasonable fee. Wekiwa Concrete v. Reddick, 396 So.2d 832 (Fla. 1st DCA 1981).

Finally, contrary to the employer/carrier’s argument, the deputy commissioner did not err in accepting Dr. Dale’s testimony regarding claimant’s 20% anatomical impairment over Dr. Moll’s opinion that the claimant sustained only a 10% anatomical impairment. It has long been recognized that a deputy commissioner may accept one physician’s testimony over another physician’s testimony. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978). Here, Dr. Dale was the claimant’s treating physician for over two years and had testified at previous hearings although only his deposition was introduced at the hearing below. On the other hand, Dr. Moll only examined the claimant on one occasion in 1980 and the only record evidence of his evaluation is found in reports submitted to the carrier. Therefore, there was more than a sufficient basis for the deputy commissioner’s acceptance of Dr. Dale’s testimony over the testimony of Dr. Moll.

Therefore, the appealed order is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    STATE of Florida, Appellant, v. J. M. Z., a child, Appellee.
    No. AD-201.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 5, 1982.

      Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellant.
    Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, Tallahassee, for appellee.
   PER CURIAM.

The State appeals a dismissal with prejudice of its petition of delinquency. We affirm.

The appellee, a juvenile, was arrested on January 23, 1981, for driving while under the influence and reckless driving. On February 12, 1981, appellee entered a plea of not guilty to the charges and the traffic court transferred the cause to the circuit court, juvenile division. On March 23,1981, thirty-nine (39) days after the cause was transferred, but fifty-nine (59) days after appellee’s arrest, the State filed its petition of delinquency. On April 21, 1981, appellee filed a motion to dismiss alleging that forty-five (45) days had elapsed between the date of his arrest and the date the petition of delinquency was filed, and requesting that the case be dismissed with prejudice, pursuant to Section 39.05(6), Florida Statutes. A hearing was held on the motion on April 23, 1981, at which time the trial court dismissed the case with prejudice.

Section 39.05(6) provides that if a petition alleging delinquency is not filed within forty-five (45) days from the date the child is taken into custody, it must be dismissed with prejudice. This section permits a court to grant an extension of time, not to exceed fifteen (15) days, upon motion by the State Attorney, when, in the opinion of the court, the additional time is justified because of exceptional circumstances. Pri- or to its amendment in 1978, this section required a petition to be filed within thirty (30) days from the date the complaint was referred to the intake office. Cases decided before the 1978 amendment held that this section gave the juvenile a substantive right to have the petition dismissed if it was filed more than thirty (30) days after the complaint was received by the intake office.

The 1978 amendment extended the time for filing to forty-five (45) days and provided that the court might grant an extension of time not to exceed fifteen (15) days. In 1980, the statute was amended to require filing of the petition within forty-five (45) days from the time the juvenile was taken into custody. “ ‘Taken into custody’ means the status of a child immediately when temporary physical control over the child is obtained by a person authorized by law, pending the child’s release, detention, placement, or other disposition as authorized by law.”

Appellant’s argument that appel-lee could not be considered to have committed a delinquent act until the traffic court certified his case to the circuit court is correct. However, the forty-five (45) days period within which a petition of delinquency must be filed does not begin to run when a juvenile is considered to have committed a delinquent act. Rather, it begins to run when the juvenile is taken into custody. Here, appellee was taken into custody on January 23, 1981, but the petition of delinquency was not filed until March 23, 1981, fifty-nine (59) days after appellee’s arrest. Since the petition was filed after the statutory limit, the trial court was correct in granting appellee’s motion to dismiss with prejudice.

AFFIRMED.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . E.g., S. R. v. State, 346 So.2d 1018 (Fla.1977); T. R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978).

      . Chapter 78-414, Laws of Florida (1978).

      . Chapter 80-290, Laws of Florida (1980).

      . Section 39.01(33), Florida Statutes.

      . Sections 39.01(21) and 39.02(1), Florida Statutes.


text:
    T. D. ZETROUER & Dorothy Zetrouer, his wife, Appellants, v. ALACHUA COUNTY, a political subdivision of the State of Florida, Appellee.
    No. AD-349.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 5, 1982.
    William C. Andrews, Gainesville, for appellants.
    George H. Nickerson, County Atty., Dennis R. Long, Asst. County Atty., for appel-lee.
   PER CURIAM.

In this declaratory judgment action seeking to have the Zetrouers’ rights determined under a comprehensive plan adopted pursuant to law, the lower court denied them relief. They appeal and we affirm. Without ruling on the legality of Alachua County’s change in its comprehensive plan effected after the Zetrouers applied to have their property rezoned, we hold that Ala-chua County had the authority under its original comprehensive land use plan to deny the rezoning application.

The appellants proposed development called for an average density of four units per acre. However, the density level as specified in the land use element designated for appellants’ property in the original comprehensive plan was three-four units per acre. The county commission had the discretion to establish a density level between three and four units for this particular land use element in enacting a zoning ordinance, and the land owner was not entitled to the maximum density allowable within that range. See Dade County v. Inversiones Rafamar, S.A., 360 So.2d 1130, 1132 (Fla. 3d DCA 1978).

AFFIRMED.

ERVIN, BOOTH and THOMPSON, JJ., concur.

      . This adopted plan became effective on July 1, 1978, pursuant to the Local Government Comprehensive Planning Act of 1975, Section 163.-3161, et seq., Florida Statutes.


text:
    Mark H. RUBEN, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellee.
    No. 81-470.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 4, 1982.
    Daniels & Hicks, Plezner, Schwedock, Finkelstein & Klausner, and Patrice Talisman, Miami, for appellant.
    McClure & Gay and Robert J. Reid and Murray Lee Gay, Jr., Fort Lauderdale, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgment entered by the trial court declaring that the appellant was excluded from coverage under a policy issued by the appellee to its insured, Toyota Auto Sales. Appellant’s claim for coverage under the uninsured motorist section of the policy is that he (concededly, neither an insured nor a designated insured) was a person injured by an uninsured motorist while occupying Toyota’s “insured highway vehicle.” But under the policy, an “insured highway vehicle” is unambiguously defined as a vehicle to which “bodily liability coverage applies.” Because the liability section of the policy, permissibly, see Castillo v. Bickley, 363 So.2d 792 (Fla.1978), excludes independent contractors; and the appellant admittedly occupied the insured vehicle as an agent of a repair garage, an independent contractor, not as an agent of the insured; the appellant was not occupying an “insured highway vehicle,” as defined, and was not, therefore, entitled to uninsured motorist coverage.

Affirmed.


text:
    UNITED COIN METER CO. OF FLORIDA, INC., Appellant, v. COMMERCIAL LAUNDRIES, INC., Appellee.
    No. 81-1993.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 8, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Litman, Muchnik & Was-serman, Hollywood, for appellant.
    Ainslee R. Ferdie, Coral Gables, for ap-pellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Appellant has failed to demonstrate that the trial court abused its discretion, therefore, we affirm that portion of the order granting a temporary injunction restraining appellant and La Morada Condominium Association from interfering with appellee’s use of the laundry space; placing competitive laundry equipment on the premises; and interfering with appellee’s connection to the utilities during litigation of this contract dispute. Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976); Durable Uniform and Linen Supply Co. v. Sanitary Linen Service Co., 183 So.2d 226 (Fla. 3d DCA), cert. dism., 192 So.2d 484 (Fla.1966). See Adoption Hot Line, Inc. v. State, Department of Health and Rehabilitative Services, 385 So.2d 682 (Fla. 3d DCA 1980); Paul’s Drugs, Inc. v. Southern Bell Tel. & Tel. Co., 175 So.2d 203 (Fla. 3d DCA 1965); Miami Laundry Co. v. Sanitary Linen Service Co., 131 So.2d 519 (Fla. 3d DCA), cert. denied, 133 So.2d 325 (Fla.1961). We reverse, however, as to paragraph 1(f) which is overly broad and constitutes a judicially ordered compulsory cross-claim contrary to the language of Florida Rule of Civil Procedure 1.170(g).

With the deletion of paragraph 1(f) in its entirety, the order, as modified, is affirmed.