author: HUBBART, Chief Judge. DANIEL S. PEARSON, Judge,

text:
    Barry SANDS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2189.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Mark Perlman, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Theda James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central question presented by this appeal is whether the warrantless search of the defendant’s person by the police in this case constituted an unreasonable search and seizure in violation of the defendant’s rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. For the reasons which follow, we conclude that the subject search and seizure was conducted incident to a valid arrest of the defendant and, therefore, did not constitute a violation of the defendant’s search and seizure rights guaranteed by the above constitutional provisions. We, accordingly, affirm the judgment of conviction and sentence appealed from, as the trial court was eminently correct in denying the defendant’s motion to suppress the fruits of the subject search and seizure.

I

The facts relevant to the above search and seizure issue are based entirely on the testimony of Officer William Johnson — the only witness who testified below at the hearing on the defendant’s motion to suppress. These facts are as follows.

On September 19, 1979, Officer Johnson was working at the Miami International Airport as part of the airport narcotics unit with his partner Officer Pearson. Officer Johnson had worked in this unit for a period of two years and received extensive training and experience with reference to the arrest of drug suspects; in particular, Officer Johnson was familiar and had worked extensively with the so-called “drug courier profile” with reference to the spotting and arresting of narcotic drug suspects.

On the above-stated date at approximately 4:40 p. m., Officer Johnson observed the defendant Barry Sands exiting a taxicab in front of the airport with one Gerald Russell. The defendant Sands was carrying a brown leather suit bag and a brown purse; his companion Russell carried a brown leather totebag. The two men entered the terminal near Concourse G and walked to the Continental Airlines ticket counter. On their way, both men appeared to the officer to be peering anxiously at all the persons around them.

Russell approached the Continental Airlines counter first, took out a large amount of cash from his pants pocket and requested tickets to Houston, Texas. In the midst of the transaction, Russell left the counter hurriedly and ran up the length of Concourse G to a men’s room, leaving the defendant Sands to complete the purchase. Just as Sands was concluding the transaction for both of them, Russell returned to the ticket counter and received both tickets. No bags were checked.

Both men then proceeded toward Concourse G with Officers Johnson and Pearson following. At the juncture of Concourse G where it meets the main terminal, Officer Pearson approached Russell. Officer Pearson displayed his badge and identified himself as a police officer. At that point the defendant Sands, who was a foot ahead of Russell, turned in the direction of the two and walked rapidly away. Officer Johnson continued to observe as the defendant walked toward the Concourse G entrance, periodically looking back behind him at Russell and Officer Pearson. Suddenly, the defendant veered to his right and began walking away from the concourse, still looking back at Officer Pearson and Russell.

At that point, Officer Johnson approached the defendant, identified himself as a police officer and “asked him if he had a minute to talk.” The defendant Sands at first did not appear to hear him — he was still preoccupied with Officer Pearson and Russell — and the officer repeated himself. The defendant Sands then replied, “yes, of course.” Officer Johnson asked the defendant Sands for identification and the defendant produced a Houston driver’s license in the name of “Barry Sands.” This license remained in Officer Johnson’s possession during the following questioning.

Officer Johnson asked the defendant if he was flying that day; the defendant said, “no.” Officer Johnson then pointed out Russell to the defendant and asked the defendant if he knew him; the defendant again said, “no.” Officer Johnson then indicated that he had seen the two exit the same taxicab and make a ticket purchase together. The defendant Sands immediately changed his story and began to tremble visibly and to sweat. Officer Johnson advised that he was concerned with narcotics passing through the airport, requested permission to search the defendant’s suit bag, and advised that the defendant had a right to refuse the search; the defendant agreed to the search. Officer Johnson also asked for and received permission to search the defendant’s purse. Prior to conducting any of these searches, however, Officer Johnson suggested that the two walk over some ten yards to where Officer Pearson and Mr. Russell were standing to see if Russell had the defendant Sands’ airplane ticket. They thereupon walked over to this location where Officer Johnson found the defendant Sands’ ticket under Mr. Russell’s bag which was lying on a counter. Officer Johnson looked at it and thereafter handed both the ticket and the license back to the defendant Sands.

Officer Johnson thereupon proceeded to search the defendant Sands’ suit bag and purse, but found nothing incriminating. Officer Johnson then, testified as follows concerning what transpired thereafter:

“Q. What occurred then?
A. I asked Mr. Sands for permission to check his ankles.
Q. Why was that?
A. Because, based on my experience at the airport, it is a very popular place to carry reasonably large quantities of contraband.
Q. Had Mr. Sands’ physical condition changed at all?
A. No, he was highly active, pacing back and forth and he continued to tremble. He appeared to be extremely nervous.
Q. How did you request permission to check Mr. Sands’ ankles?
A. While I was kneeling down, when I finished looking through the bag, I said, ‘Can I look at your ankles?’
Q. Did Mr. Sands reply?
A. Yes. He said, ‘Really?’
I said ‘Really. A lot of people carry contraband on their ankles.’
Q. What did Mr. Sands say?
A. He said, ‘Well, let’s go somewhere where it’s more private.’
Q. Did he give you a reason why he wanted to go to somewhere where it was more private?
A. No.
Q. What occurred at the point where Mr. Sands suggested the move?
A. I suggested that we go in the men’s room that was a few feet away from us.
Q. What occurred?
A. I stood up. I believe we folded his suit bag back up and he took a step towards the men’s room and he stopped and turned around and looked at me and said, ‘Well, you might as well take me downtown and file your complaint.’
Q. What did you understand that to mean?
A. I took it to be an admission that he did, in fact, have contraband on his ankle.
Q. What did you do at that point?
A. I advised Sergeant Pearson that the subject had contraband on his ankles.” [R. 58-60]

Officer Johnson immediately thereafter directed the defendant to go into the men’s room where Officer Johnson frisked the defendant and discovered a quantity of cocaine being carried in a malleable lump on each one of the defendant Sands’ ankles.

The defendant was subsequently charged by information with: (1) trafficking in a controlled substance [893.135, Fla.Stat. (1977)], and (2) possession of a controlled substance with intent to sell [§ 893.13, Fla. Stat. (1977) ], in the Circuit Court for the Eleventh Judicial Circuit of Florida based on the above seizure of cocaine. The defendant moved pretrial to suppress the fruits of the subject search on the ground that said search was conducted in violation of the defendant’s search and seizure rights guaranteed by the state and federal constitutions. The trial court heard and denied the motion to suppress. Thereafter the defendant entered a plea of nolo contendere to both charges, specifically reserving for appeal the denial of his motion to suppress. The defendant was thereupon adjudged guilty as charged and was sentenced to two five-year concurrent sentences in the state penitentiary. The defendant appeals this judgment of conviction and sentence; we have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla.Const.; Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971).

II

The law is well-settled that a search and seizure conducted by state officials is presumptively unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution when conducted without a search warrant, subject only to certain specifically established and well-delineated exceptions justified by absolute necessity. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981); Pomerantz v. State, 372 So.2d 104, 107 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). The state has the burden of proving that such an exception applies in a given ease. Norman v. State, supra; Hornblower v. State, 351 So.2d 716 (Fla.1977); Morales v. State, supra, at 327; Taylor v. State, 355 So.2d 180, 183 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). One of the well-recognized exceptions to the search warrant requirement rule is that the police may conduct a warrantless search incident to effecting a lawful arrest of a person. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), affirming, State v. Gustafson, 258 So.2d 1 (Fla.1972); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973); Dixon v. State, 343 So.2d 1345, 1347 (Fla. 2d DCA 1977); § 905.21, Fla.Stat. (1981). Two requirements must necessarily be met before this exception is applicable in a given case: (1) the arrest of the said person must be lawful, and (2) the search must be properly incident to effecting that arrest. We turn now to a brief discussion of each of these two requirements.

A

“It is settled that in order to make a valid arrest [under the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution] probable cause must exist prior thereto.” D’Agostino v. State, 310 So.2d 12, 15 (Fla.1975); see also Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). “Probable cause to arrest exists where a reasonable man, having the specialized training of a police officer, in reviewing facts known to the arresting officer prior to the actual time of arrest, would come to the conclusion that a felony is being or has been committed by the person to be arrested.” Skelton v. State, 349 So.2d 193, 194 (Fla. 3d DCA 1977). Moreover, a police officer is authorized in Florida to make an arrest without an arrest warrant— save in the arrestee’s home, see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) — when the officer “reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.” § 901.15(3), Fla. Stat. (1981).

The classic definition of probable cause, adopted by Florida courts, is set forth by the United States Supreme Court in Brineger v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), as follows:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ (citations omitted.) And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, Ch.J., said for the Court more than a century ago in Locke v. United States [7 Cranch. 339, 3 L.Ed. 364].... Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their (the officers’) knowledge, and of which they had reasonably trustworthy information, (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed, (citation omitted).
These long prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law abiding citizens at the mercy of the officers’ whim or caprice.”

Moreover, the Florida Supreme Court has added in State v. Outten, 206 So.2d 392, 397 (Fla.1968), as follows:

“The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which conviction must be based, (citation omitted). The sufficiency of the officer’s knowledge is not to be judged by an analysis of the effect of each isolated circumstance. Rather, it is to be measured by the test of what a reasonable man would have believed had he known all of the facts known by the officer, (citation omitted.) This rule of arrest is even more logical in this age of rapid transit, than it was in earlier years. Many criminals would be out of the jurisdiction and beyond apprehension before an arrest could be made if the officer were held to a stricter standard than that stated above. This standard strikes a balance between the pub-lie’s right to have lawbreakers captured and the individual’s right, to be free from unreasonable detention.” [emphasis added].

B

Given a valid arrest, a police officer is authorized to conduct a search incident to effecting that arrest. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), affirming, State v. Gustafson, 258 So.2d 1 (Fla.1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 365 (1969); § 905.21, Fla.Stat. (1977). This means that subsequent to such an arrest, “the police have an automatic right, without any further evidentiary showing, to conduct a full-blown search of the person arrested and the physical area into which he might reach in order to grab a weapon or destroy evidentiary items.” State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). “It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973).

Ill

Turning to the instant case, we have no trouble in concluding that the state established that the “search incident” exception was applicable to the warrantless search conducted herein. The arrest, when effected, was plainly based on probable cause and the search of the defendant’s person was clearly incident to effecting that arrest.

A

The arrest, in this case, took place when the defendant was, in effect, ordered into the men’s room by Officer Johnson after the defendant had stated, “Well, you might as well take me downtown and file your complaint.” Indeed, our decision in Royer v. State, 389 So.2d 1007, 1018 (Fla. 3d DCA) (en banc), pet. for review denied, 397 So.2d 779 (Fla.1981), cert. granted,-U.S.-, 102 S.Ct. 631, 70 L.Ed.2d 612 (1981), based on virtually identical facts, compels us to reach this conclusion. Prior thereto, however, the defendant’s liberty was in no way restrained by the police; indeed, our decision in Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981), based on strikingly similar facts, requires us to reach that conclusion. True, the defendant did give his plane ticket and driver’s license to Officer Johnson, but, unlike State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979), both items were returned to the defendant so that his liberty cannot be said to have been restrained on that account; we reject the defendant’s contrary contentions on this issue as unsupported by the existing case law. The arrest, in turn, of the defendant, when effected, was clearly a lawful one based on all the facts and circumstances of the case. We turn now to a review of those incriminating facts and circumstances.

1

First, the defendant’s behavior prior to Officer Johnson’s approach to the defendant in the airport fit, in part, a “drug courier profile” developed for use at major metropolitan airports by law enforcement agencies; indeed, this is what initially attracted Officer Johnson’s attention to the defendant. According to Officer Johnson, the defendant’s behavior, when considered as a whole, was suspiciously consistent with the behavior of many other drug couriers previously arrested during the officer’s two years of work with the drug enforcement unit at the Miami International Airport. This behavior, briefly stated, was that the defendant: (a) arrived at the airport just before flight time and was extremely rushed, (b) appeared to be very nervous and was looking into the faces of everyone around him as he entered and moved through the airport, (c) was carrying light carry-on luggage, (d) purchased his place ticket in cash, rather than by check or credit card, (e) purchased a one-way plane ticket to Houston, Texas, a “target” city used by couriers for drug deliveries, and most importantly, (f) disassociated himself and his companion Russell when Officer Pearson began speaking to Russell and thereafter attempted to leave the airport. Although this informal “drug courier profile” behavior did not and could not constitute probable cause, in itself, for the defendant’s arrest, Royer v. State, 389 So.2d at 1015-20, it was, when considered in totality, certainly suspicious behavior which warranted further scrutiny. See e.g., United States v. Mendenhall, 446 U.S. 544, 547, 100 S.Ct. 1870, 1873, 64 L.Ed.2d 497 (1980) (Powell, J., concurring); State v. Mitchell, 377 So.2d 1006 (Fla. 3d DCA 1979). It must, therefore, be considered part of the total, composite picture of probable cause which we examine in this case.

2

Secondly, the defendant’s conduct during his conversation with Officer Johnson prior to arrest was equally suspicious. The defendant, at first, stated that he was not flying that day and was not acquainted with his companion Russell. When confronted with Officer Johnson’s prior knowledge which indicated that these were false statements, the defendant changed his story while visibly shaking and sweating. This behavior, in our view, reasonably corroborated Officer Johnson’s suspicion that he was dealing with a drug courier. Indeed, we are of the view that at this point there was a founded suspicion that the defendant was carrying contraband drugs which would have justified a temporary detention of the defendant, although such detention was not, in fact, effected in this case. See e.g., United States v. Smith, 574 F.2d 882 (6th Cir. 1978); State v. Mitchell, 377 So.2d 1006 (Fla. 3d DCA 1979); Myles v. State, 374 So.2d 83 (Fla. 3d DCA 1979).

3

Finally, the defendant’s statement to Officer Johnson which precipitated the arrest in this case was, without doubt, incriminating in nature. Officer Johnson had, quite properly, asked the defendant during the subject encounter for permission to search the defendant’s ankles stating, “a lot of people carry contraband on their ankles.” The defendant responded that he wanted to go somewhere private and Officer Johnson suggested the nearby men’s room. Whereupon the defendant folded up his suit bag, took one step toward the men’s room, stopped, turned around, looked at Officer Johnson and said, “Well you might as well take me downtown and file your complaint.” By this statement, the defendant was surely indicating, albeit indirectly, that he had contraband drugs on his ankles which Officer Johnson was about to discover, and that he was submitting to an arrest which he knew would inevitably follow; indeed, Officer Johnson, as well as the trial judge, interpreted the statement to mean, in effect, “You’ve got me.” That inference, in our view, seems irresistible given the context in which it was made.

Moreover, we have no doubt that under the law the defendant’s statement here was properly used against him. It was plainly a free and voluntary statement — indeed, a volunteered statement — made at a time when the defendant was entirely free to go his way with his airline ticket and luggage in hand. It was in no sense the product of illegal police coercion, threats, promises, or intimidation. Indeed, the entire subject of a possible arrest did not even come up in the conversation until the defendant mentioned it. Agreed, the defendant was, in fact, frightened during his encounter with Officer Johnson and no doubt believed that an arrest was imminent when he made his statement, but that was entirely due to his own consciousness of guilt and was in no way prompted by anything improper done by Officer Johnson.

Nor can the statement be excluded as being a crude assertion of constitutional rights for which, concededly, no incriminating inference could be drawn. The defendant by this statement was not daring Officer Johnson to arrest him or leave him alone, he was not refusing his consent to a police search of his person, he was not asserting any rights at all. Plainly and simply, he was acquiescing in an arrest which he saw as inevitable solely because of his own consciousness of guilt. As such, the statement was not an assertion of constitutional rights or a defiance to authority, crudely expressed, but an incriminating statement which Officer Johnson had a right to consider in determining whether to arrest the defendant.

4

Putting together, then the sum total of all of the above facts and circumstances presented to Officer Johnson at the point of arrest, we have no trouble in concluding that a reasonable man, having the specialized training of a police officer, would have concluded that the defendant was carrying contraband drugs; the subsequent arrest was, therefore, based on probable cause. The defendant fit, in part, the law enforcement “drug courier profile,” displaying a total of six such characteristics of the profile; the defendant lied to Officer Johnson concerning his travel plans and association with his companion while visibly shaking and sweating; and, finally, the defendant made a highly suspicious statement to Officer Johnson pointing toward his present possession of contraband drugs. These facts, when considered as a whole, and not in isolation, gave Officer Johnson probable cause to arrest the defendant; indeed, we think the defendant’s suspicious statement made just prior to the arrest tipped the scales from founded suspicion to probable cause and fully justified Officer Johnson’s belief that the defendant was carrying contraband drugs.

B

Given a valid arrest of the defendant herein, we have no trouble in further concluding that the subsequent search of his person — which revealed the contraband cocaine — was clearly incident to effecting that arrest. As previously noted, searches of an arrestee’s person, are, without exception, considered properly incident to effecting the arrest; indeed, the defendant has raised no contention to the contrary in either the trial court or this court. Accordingly, the subject search was plainly a reasonable one under the appropriate state and federal constitutional provisions as the search was conducted incident to effecting a valid arrest of the defendant.

IV

For the above stated reasons, the trial court was eminently correct in denying the defendant’s motion to suppress in this cause. The judgment of conviction and sentence under review is, accordingly,

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

While I realize that, in some quarters, it is forcefully argued that telling a police officer that he cannot enter your home without a warrant is a circumstance which gives rise to a suspicion that the sought-after evidence is within, I believed, until today, that no court would announce that such a statement or, here, its counterpart, either by itself or when added to other “suspicious” circumstances, provides probable cause to search. I thought that the courts of this country were in complete agreement that because the lawful exercise of constitutional rights in the face of police authority comes from both the righteous and the wicked, that such exercise proves nothing at all.

Sands’ words, “Well you might as well take me downtown and file your complaint,” are quite simply the functional equivalent of “arrest me,” or in other settings, “get a warrant,” “get lost,” or even more provocative challenges to authority. If these words are to be interpreted, as the majority says, “given the context,” then I suggest that the context will nearly always be one in which the statement can be construed as evincing consciousness of guilt. Thus, the most unequivocal statement, “You cannot search my person,” in the context of a previous consent to a search of luggage, could quite clearly be construed as indicating excessive and particular concern that a search of the person will turn up incriminating evidence and be, therefore, a circumstance to be viewed with suspicion. The context then will nearly always supply the ambiguity, and words which ostensibly rebuff a perceived unauthorized intrusion can nearly always be said to be an admission of guilt.

This is precisely the case before us. The trial court stated that “in light of all the circumstances, I am inclined to interpret that ‘you might as well take me down [town]’ means it is an admission that you got me.” It is evident in the record that the “circumstances” referred to are that since Sands previously consented to a search of his luggage and thereafter withheld his consent to a search of his person, his statement became an admission.

“THE COURT: There is no question about it in my mind. At that point, he had no right to stop the Defendant. He had no right to search the Defendant. “He had every right to talk to the Defendant and the Defendant had a right to say, T don’t want to talk to you.’ Now, what developed later when the Defendant had given his consent to the search of his luggage and then suddenly said, ‘Oh, well, you are not going to search my person, specifically as it relates to my ankles.’
“Obviously wasn’t there probable cause at that time? Wasn’t that really an admission, ‘Look, I let you search, but I have nothing.’ In this instance, at this point, no sir.”

By affirming the trial court, the majority approves a rule of law that a constitutionally sanctioned challenge to authority, or, as the majority seems to prefer, acquiescence to arrest in the face of authority, given the proper (and, I suggest, not unusual) context, is an incriminating admission.

Here, despite the majority’s omniscient hindsight, the statement by Sands no more clearly signified Sands’ guilt than it signified the exercise of his constitutional right to be searched incident to a lawful arrest. In my view, the correct rule of law is that only a clear and unequivocal incriminating statement — looking to the words alone —can be a circumstance used in determining the existence of probable cause. This view is hardly novel. Indeed, I thought that the issue in the present case had been settled long ago by Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which flatly rejected the notion that “a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked.” 371 U.S. at 484, 83 S.Ct. at 415.

I have a still greater concern about the majority opinion. The majority implicitly concedes that the search was conducted without the defendant’s voluntary consent. They do this quite obviously because the defendant’s “ambiguous” statement did not provide the necessary clear and convincing evidence of consent. But the majority takes that very same statement and uses it as the last straw for probable cause. By this process of converting non-consent into a factor for probable cause, the majority obviates the need for the defendant’s consent to search where probable cause is lacking. If refusal to consent — unequivocal or ambiguous — is, viewed in context, suspicious and can provide probable cause, then an officer who has less than probable cause need only ask for permission to search, and no matter what the answer, proceed to search. Although likely unintended, this is the pernicious outcome of the majority opinion.

I dissent.

      . The defendant also reserved the right to appeal the denial of his motion to dismiss the information. There is admittedly no merit to this position in view of the Supreme Court’s subsequently decided case of State v. Benitez, 395 So.2d 514 (Fla. 1981). We, accordingly, reject the defendant’s contention on this appeal that Section 893.135, Florida Statutes (1977) is unconstitutional.

      . See e.g., McCain v. State, 151 So.2d 841 (Fla.2d DCA), cert. denied, 157 So.2d 817 (Fla. 1963); Gispert v. State, 118 So.2d 596, 598 (Fla. 2d DCA), cert. denied, 122 So.2d 782 (Fla.1960).

      . See e.g., United States v. Wilkes, 451 F.2d 938, 941 (2d Cir. 1971) (overheard remark that, “I don’t sell bundles at a discount,” by defendant went a long way to establishing probable cause for arrest of suspected drug dealer); State v. Durham, 108 Ariz. 233, 495 P.2d 463, 465 (Ariz. 1972) (en banc) (defendant’s statement, “I am not dealing, I only have enough for my own use,” to undercover police officer held sufficient probable cause for arrest); People v. Taylor, 46 Cal.App.3d 513, 120 Cal.Rptr. 762, 769-80 (1975) (factor in finding probable cause for arrest for burglary was defendant’s statement to police after being stopped in car, “How did you know it was me?”).

      . On cross-examination, the officer stated that he could not remember the exact words and that Sands might have said, “If you want to search my ankles, you might as well take me downtown and file your complaint.” Under the majority’s analysis, this difference in the language used would make no difference in the result it reaches.

      . In Goldberg v. State, 407 So.2d 352 (Fla. 4th DCA 1981), during a consensual search of the defendant’s luggage, the defendant objected— “Hey, that is my personal stuff’ — when the officer pulled a package from a shirt pocket within the luggage. The appellate court found this to be a withdrawal of consent and held the continuing search and seizure of the package unlawful. I assume the majority in the present case would, given the context, view the defendant’s statement as an admission supplying probable cause.

      . The majority, knowing that drugs were found on the defendant’s person, confidently asserts that the statement arose from the defendant’s consciousness of guilt. Thus, his statement is said to be incriminating “without doubt,” “surely indicating” that he possessed contraband, and “irresistibly” meaning that “you’ve got me.” I had always thought that since a search is not justified by what it turns up, neither is an arrest.

      . To the extent that the statement is in response to a question, and without the question is meaningless, then one may look to the question and, in that limited sense, the “context.” If this were the majority’s view of “context,” I wouid have no quarrel with it.

      . Compare Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Burton, J., concurring) (defendant’s answer, “Not too much,” to question, “How much liquor have you got in the car?” was an admission that he was transporting some liquor, providing probable cause for arrest) with Pigg v. United States, 337 F.2d 302 (8th Cir. 1964) (defendant’s statement, “I wouldn’t doubt it,” in response to officer’s statement, “I bet you stole it” [referring to a box of merchandise in defendant’s hand], not an admission so as to supply probable cause for defendant’s arrest). Each of the statements made in the cases cited by the majority in n. 3, supra, is, on its face, incriminating.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF MIAMI BEACH and Florida Insurance Guaranty Association, Inc., Appellants, v. Lee KLEIN and Mercedes A. Cruz, Appellees.
    Nos. 80-2342, 80-2343.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Joe N. Unger, Preddy, Kutner & Hardy, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kandell, Philip Freidin, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The single issue on this appeal is whether the trial judge erred in refusing to grant a motion for new trial following a jury verdict for the plaintiff. During the trial, the jury received certain evidence which originated from a Miami Beach Police Department Internal Affairs file which was never introduced in evidence. The City of Miami Beach, defendant below, appellant here, claims that irreparable prejudice resulted from the disclosures. We conclude that no reversible error is demonstrated on this record and, accordingly, affirm.

The existence of the file and reference to its contents were first brought out by the defendant during plaintiff’s case in chief. Subsequent reference to the file in question was made by both sides and, in fact, portions of its contents were received in evidence. Since the use of testimony was originally initiated by the defense and the fact that the officers were subsequently exonerated by the City of Miami Beach’s personnel board was brought out by the defense, the plaintiff’s revelation that the officers were charged in a disciplinary proceeding and the basis for those charges can hardly be characterized as prejudicial. The trial court’s determination that the defense had “opened the door” was proper. Oliver v. Haspil, 152 So.2d 758, 760 n.2 (Fla. 3d DCA 1963). See also McKinney Supply Company v. Orovitz, 96 So.2d 209 (Fla.1957); Behar v. Southeast Banks Trust Company, N.A., 374 So.2d 572 (Fla. 3d DCA 1979); Clay v. Thomas, 363 So.2d 588 (Fla. 4th DCA 1978).

Affirmed.

      . No motion in limine regarding the internal review file or reference to testimony which occurred at the personnel board hearing was made by either party.


author: HENDRY, Judge.

text:
    Paul Joseph GRALA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-704.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Bennett H. Brummer, Public Defender and Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   HENDRY, Judge.

Paul Grala appeals from convictions on three counts of DWI manslaughter, [sec. 860.01(2), Fla.Stat. (1979) ], and three counts of vehicular homicide, [sec. 782.071, Fla.Stat. (1979) ], assigning as error the admission of blood alcohol test results, and the giving of a jury instruction on the statutory presumption of intoxication arising from the test.

The charges arise from a traffic accident about ten miles north of Key Largo in which the defendant’s van crossed the center line and struck a car head-on, killing three people. After he was taken to the hospital, a highway patrolman requested a blood sample from a doctor since the defendant smelled strongly of alcohol and was too incapacitated to submit to a breathalyzer test. An unknown person at the hospital drew the blood sample, which was given to Dr. Norman Lee, who is certified by the Department of Health and Rehabilitative Services to perform chemical analysis of blood samples. Dr. Lee’s test of the defendant’s blood revealed an alcohol level of .23 per cent.

Pre-trial, the defendant moved to suppress the test results. This motion was denied, the trial court apparently concluding that withdrawal of the blood under a doctor’s supervision satisfied the statutory requirements of section 322.261(2)(b), Florida Statutes (1979).

At trial, Dr. Lee testified to the test results and their significance. Three highway troopers handling the accident testified that the defendant smelled strongly of alcohol from some distance away, had watery, bloodshot eyes with dilated pupils, and a very pale face. All stated that in their opinion the defendant was very intoxicated. A paramedic and another witness confirmed this conclusion. The paramedic testified that the defendant was belligerent and had to be restrained from standing up despite two broken legs, one a compound fracture. The witness, who had been driving directly behind the car the defendant struck, also stated that the defendant’s van had drifted over the center line at a strange angle shortly before striking the car, and that the victims’ car was carefully driven well below the speed limit. The defendant took the stand in his own behalf and admitted having several drinks prior to the accident.

Without objection from the defendant, the trial court instructed the jury on the statutory presumption of intoxication where the level of alcohol in the blood is .10 per cent or more. The jury returned verdicts of guilty on three counts of DWI manslaughter and three counts of vehicular homicide. The court sentenced the defendant to three years imprisonment on the first count of manslaughter, and five years probation on the other two counts of manslaughter. Entry of sentence on the vehicular homicide counts was suspended.

On appeal, the defendant contends that the trial court erred in admitting the blood alcohol test results because there was no showing that the blood was withdrawn by a physician, nurse, or technician as required by section 322.261(2)(b), Florida Statutes (1979).

We agree that the test results were improperly admitted into evidence since the State, by failing to present evidence of the identity or qualifications of the person who withdrew the blood, did not comply with the statutory provisions pertaining to such tests. See State v. Bender, 382 So.2d 697 (Fla.1980); State v. Wills, 359 So.2d 566 (Fla. 2d DCA 1978). We find, however, that this error was harmless due to the overwhelming evidence of intoxication aside from the results of the blood test, which evidence is sufficient to support a conviction. Sec. 59.041, Fla.Stat. (1981). See and compare Turk v. State, 403 So.2d 1077 (Fla. 1st DCA 1981). (where only evidence of defendant’s blood alcohol level was shown by the results of intoximeter test and intoximeter was not properly documented, DWI conviction overturned).

A conviction of DWI manslaughter under section 860.01(2), requires direct proof that a death occurred, that the death resulted from operation of a vehicle by the defendant, and that the defendant was intoxicated at the time he operated the vehicle. Baker v. State, 377 So.2d 17 (Fla.1979). See also State v. Harris, 348 So.2d 283 (Fla.1977). A conviction under the vehicular homicide statute, section 782.071, requires proof of the death of a human being by the operation of a motor vehicle in “a reckless manner likely to cause the death of, or great bodily harm to, another.” McCreary v. state, 371 So.2d 1024 (Fla.1979) (vehicular homicide, section 782.071, requires a lesser standard of proof for conviction than the manslaughter statute, section 782.07).

An examination of the evidence in a light most favorable to the State discloses that the defendant drove or drifted into the oncoming lane of traffic, failed to apply his brakes, and struck a vehicle head-on with sufficient force to kill three people and injure several others. Coupled with this conduct was the defendant’s own testimony that he had at least three drinks prior to the accident, and the testimony by state troopers and others that the defendant was highly intoxicated, belligerent, had to be physically restrained from standing up despite two broken legs, one a compound fracture, had watery, bloodshot eyes with dilated pupils, appeared pale and had slurred speech. Such evidence of intoxication is properly considered as bearing on proof of recklessness. See Filmon v. State, 336 So.2d 586 (Fla.1976), appeal dismissed, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977), and cases cited. We conclude that the totality of the circumstances was sufficient to demonstrate that a death occurred, that the death resulted from the operation of a vehicle in a reckless manner by the defendant, and that the defendant was intoxicated at the time he operated the vehicle. See McCreary v. State, supra; Filmon v. State, supra. Accordingly, the evidence was sufficient to support convictions for DWI manslaughter and vehicular homicide.

Grala’s final contention, that the trial court erred in instructing the jury on the presumption found in section 322.262(2)(b), is not properly before us. Defendant’s failure to object to this instruction below precludes us from considering this point, which is now raised for the first time on appeal. Fla.R.Crim.P. 3.390(d); State v. Jones, 377 So.2d 1163 (Fla.1979); Castor v. State, 365 So.2d 701 (Fla.1978); Kujawa v. State, 405 So.2d 251 (Fla. 3d DCA 1981), and cases cited.

Affirmed.

      . .23 per cent has been described as “the bottom level of a lethal dose,” see Kujawa v. State, 405 So.2d 251 (Fla. 3d DCA 1981).


text:
    Donald EMBINDER, Appellant, v. John W. CAMPBELL, Appellee.
    No. 81-1048.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    George J. Blutstein, North Miami Beach, for appellant.
    Holland & Knight and Boyce F. Ezell, III, Coral Gables, and Gary Carman, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495 (Fla.1953); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978).


text:
    Elias A. SAFIE, Appellant, v. Laura C. SAFIE, Appellee.
    Nos. 81-1121, 81-1419.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.

      Heller & Kaplan and Daniel Heller, Miami, for appellant.
    J. James Donnellan, III, Miami, for appel-lee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

We reverse the judgment under review since it affirmatively appears from the record that, prior to final hearing, the trial court received an unauthorized ex parte communication from Laura Safie. Thus, we do not reach the merits of the other points raised in the briefs and, on remand, direct this matter be heard de novo, including the taking of further evidence as may be necessary to effect a proper resolution in this cause. Keller v. Keller, 308 So.2d 106 (Fla.1974).

Reversed and remanded with directions.


text:
    Agustin GRANADA, M.D., Appellant, v. Eyda MARTINEZ, Appellee.
    No. 81-1484.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Jon W. Burke and Linda Dakis, Miami, for appellant.
    Burt E. Redlus, Miami, for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Two months after the jury returned a verdict for the appellant in this medical malpractice action, the trial court, prior to the availability of the trial transcript and buttressed by representations in the motion for new trial, entered an order granting a new trial, stating in part:

* * sfs * * *
2. During the pendency of the trial all medical expert testimony, with the exception of the Defendant himself, testified that the Defendant fell below the standards of care in this community in his treatment of the Plaintiff for a period of time with an untreated condition which caused her great discomfort.
3. This court finds that the verdict of the jury shocked the judicial conscience of this Court so the Court is of the opinion that said verdict was based upon passion, prejudice, sympathy, or some other consideration outside of the evidence, or that the jury failed to understand, weigh or consider force and credability [sic] of the evidence, or failed to follow or understand the charges of this Court, (emphasis added).

Upon examination of the record and briefs, we determine that the trial court abused its discretion in granting a new trial. The trial transcript is replete with expert medical testimony, other than appellant’s, that Dr. Granada’s treatment of the appellee did not fall below the standard of care provided by like physicians in the community. Neither the record nor the order granting a new trial discloses upon what basis the trial court determined that the jury was influenced by outside considerations. See Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Laskey v. Smith, 239 So.2d 13 (Fla.1970).

The order granting a new trial is reversed. The cause is remanded to the trial court to reinstate the jury verdict. The trial court shall assess reasonable attorney’s fees and costs to the prevailing party pursuant to section 768.56, Florida Statutes (1981).

Reversed and remanded with instructions.


text:
    Helen CARBONELL (Criado), Appellant, v. Alfredo CARBONELL, Appellee.
    No. 81-1489.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Paige & Catlin and Steven H. Hibbe, Miami, for appellant.
    Neil Chonin, Coral Gables, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The mother’s reliance on Viltz v. Viltz, 384 So.2d 1348 (Fla.3d DCA 1980), in which we held that there is no per se rule that it is in the best interests of a child who is a citizen of the United States to be raised in the United States, is misplaced, in light of the trial court’s findings, supported by substantial evidence, that for quite different reasons the best interests of this child in this case would now be served by being placed in the custody of the father, who happens to reside in the United States. The trial court was in the best position to make these findings, and we will not disturb them. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Kern v. Kern, 333 So.2d 17 (Fla.1976); Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978); O’Connor v. O’Connor, 347 So.2d 438 (Fla.3d DCA 1977).

Affirmed.


author: FERGUSON, Judge.

text:
    METROPOLITAN DADE COUNTY, Russell Fischer, Richard Fry and Al Wessner, Jr., Appellants, v. Jonas BRILL and Lorraine Mary Brill, Appellees.
    No. 81-1709.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Robert A. Ginsburg, Dade County Atty., and Ralph C. Rocheteau, Asst. County Atty., John Flynn, Miami, for appellants.
    Colson & Hicks and Mary Friedman, Miami, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Metropolitan Dade County and police officers appeal from a jury verdict for plaintiff entered on a complaint alleging excessive or unnecessary force in subduing a person who had abducted plaintiff, resulting in serious injury to plaintiff. Appellants contend that an instruction given the jury constitutes reversible error.

Where jury in a civil action is given an incorrect instruction or one not applicable to the facts, together with correct instructions; reversal is not mandated unless the error results in a miscarriage of justice; a miscarriage of justice occurs where instructions may reasonably have confused or misled the jury. Florida Power & Light Company v. McCollum, 140 So.2d 569 (Fla.1962); LaFleur v. Castlewood International Corp., 294 So.2d 21 (Fla.3d DCA 1974).

In this case the instruction on a duty of a private citizen to retreat before using deadly force, clearly not applicable, was given along with the instruction that a law enforcement officer need not retreat and may use any force believed reasonably necessary in making an arrest. The series of instructions, considered as a whole, correctly stated the law. Edwards v. Poe, 203 So.2d 188 (Fla.2d DCA 1967). It was clear that this was an action against police officers for negligence while acting in the scope of their employment. The jury was adequately instructed, as requested by appellant, that a law enforcement officer need not retreat and the instructions were neither conflicting nor confusing. Compare Veliz v. American Hospital, 414 So.2d 226 (Fla.3d DCA 1982) (instructing jury that negligence is failure to use care generally used by hospitals in the community in similar cases conflicted with instruction that nurses are not to be held liable for honest errors of judgment).

On the cross-appeal we hold that plaintiff was not entitled to payment of costs under waiver of sovereign immunity statute where verdict exceeded the statutory recovery limit. Godoy v. Dade County, 410 So.2d 1000 (Fla.3d DCA 1982); Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla.3d DCA 1981), petition for review granted, 6 F.L.W. 43 (Fla.Sup.Ct. Case No. 60,713, 1981).

Affirmed.

      . Decisions in other jurisdictions conflict with Berek, supra and Godoy, supra, by holding that statutory limitation does not apply to costs, which may be taxed as if agencies were private individuals. Compare State, Dep’t of Transp. v. Knowles, 388 So.2d 1045 (Fla.2d DCA 1980), aff’d 402 So.2d 1155 (Fla.1981) and State, Board of Regents v. Yant. 360 So.2d 99 (Fla. 1st DCA 1978), cert. denied, 364 So.2d 892 (Fla.1978) with Berek, supra and Godoy, supra.


text:
    Arthur BRAUNSTEIN, Appellant, v. Mae BRAUNSTEIN, Appellee.
    No. 81-1753.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Charles L. Neustein, Miami Beach, for appellant.
    Sheldon R. Rosenthal, Miami, for appel-lee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Mable Fadell N. PHILLIP, Appellant, v. DEPARTMENT OF INSURANCE of the State of Florida, as Receiver of Financial Fire and Casualty Company, Appellee.
    No. 81-1819.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Lee Weissenborn, Miami, for appellant.
    Della M. Ragans, Tallahassee, for appel-lee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Sottile v. Gaines Construction Company, 281 So.2d 558 (Fla.3d DCA 1973); D.F.S., Inc. v. Beasley Crane Service & Sales, Inc., 251 So.2d 727 (Fla.2d DCA 1971).


author: BASKIN, Judge.

text:
    Steven H. KERN and Susan M. Kern, Appellants, v. Agnes I. FAY and Evelyn J. Niles, Appellees.
    No. 81-2021.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Sireci, Allen, Kelly & Muldoon, Key West, E. Nelson Read, Key West, for appellants.
    Joseph B. Allen, III, Key West, for appel-lees.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

We reverse and remand for a new trial upon our holding that appellants’ demand for jury trial, filed in their amended complaint in accordance with Florida Rule of Civil Procedure 1.430, applied to all triable issues. Appellants were not required to file a separate demand directed to the counterclaim despite the fact that their claim was equitable in nature and appellees’ counterclaim presented legal issues. Appellants have not waived their right to jury and are entitled to proceed in accordance with their demand.

In light of our disposition of the jury question, we find it unnecessary to review the other questions presented.

Reversed and remanded.


text:
    Luis R. CACERES, Jr., Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, Appellee.
    No. 81-2137.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.

      Luis R. Caceres, Jr., in pro. per.
    James R. Parks, Tallahassee, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant seeks reversal of an order of the Unemployment Appeals Commission which affirmed the decision of the Appeals Referee that held appellant was not entitled to benefits on the ground that he failed to report to the claim office as required by the Florida Unemployment Compensation Law.

We have carefully considered appellant’s contentions in the light of the record on appeal and the briefs and have concluded that no reversible error has been demonstrated. There is competent substantial evidence in the record and a substantial reasonable basis in the law to support the findings and conclusions of the Appeals Referee, adopted by the Commission, that claimant is ineligible for benefits for failure to meet reporting requirements, within the meaning of section 443.091(1)(a) Florida Statutes (1980). See Bagwell Lumber Company v. Florida Department of Commerce, 353 So.2d 1261 (Fla.2d DCA 1978). Therefore the order appealed is affirmed.

Affirmed.


text:
    Louis NOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-101.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Louis Nova, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Knight v. State, 394 So.2d 997, 1001 (Fla.1981); Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980).


text:
    RINKER PORTLAND CEMENT CORPORATION, Petitioner, v. William D. SEIDEL, Trustee of F.C.M. Corporation, Respondent.
    No. 82-627.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.

      Dale A. Konigsburg, Lake Park, for petitioner.
    Schatzman & Schatzman and Arnold Schatzman, Miami, for respondent.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Petitioner seeks certiorari review of an order denying its motion to dismiss a complaint based on a contract, terms of which required the parties to arbitrate disputes. We have jurisdiction.

The filing of a proof of claim in a bankruptcy proceeding as required by bankruptcy law, along with the filing of a motion to dismiss on grounds that the claim is subject to arbitration, are not acts constituting waiver of the arbitral forum. See Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981). There is no requirement for an additional motion to compel arbitration where movant seeks dismissal based on a contractual right to arbitration. Balboa Insurance Company v. W. G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981).

The contract in this case contains no language requiring that a demand for arbitration be filed within a specified time after an act certain, e.g., Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), or that the demand for arbitration be filed within a reasonable time after a dispute has arisen, e.g., Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970). Even if the contract be construed to require that the demand for arbitration be made within a reasonable time, whether the demand was timely within the meaning of the contract provision is a matter for the arbitrator to resolve. Public Health Trust of Dade County v. M. R. Harrison Construction Co., 415 So.2d 756 (Fla. 3d DCA 1982); County of Rockland v. Primiano Construction Co., Inc., 51 N.Y.2d 1, 409 N.E.2d 951, 431 N.Y.S.2d 478 (1980).

Certiorari is granted; the order on review is quashed and the cause is remanded with directions to dismiss the complaint.

      . Fla.R.App.P. 9.100; see Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980).

      . As noted in Public Health Trust of Dade County v. M. R. Harrison Construction Co., supra, the courts in the Lyons and Bickerstaff cases were not squarely presented with the question whether the delay issue should be determined by the trial court, thus the parties in those cases, arguably, acquiesced to a judicial determination of the question.


author: ORFINGER, Judge.

text:
    Sidney P. HELD, Appellant, v. TRAFFORD REALTY COMPANY and Kathleen W. Welsh, Appellees.
    Nos. 81-385, 81-627.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    E. D. Cossaboom, Jr., Indialantic, for appellant.
    Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley .& Kabboord, P. A., Cocoa Beach, for appellee Welsh.
   ORFINGER, Judge.

This action was commenced below as an interpleader by a real estate broker who held a disputed deposit, claimed both by the buyer (appellant) and the seller (appellee). The trial court dismissed with prejudice appellant’s cross-claim on the ground that it failed to state a cause of action, following which a final judgment was entered in favor of appellee Welsh on her cross-claim. We find that appellant’s cross-claim stated a cause of action and reverse.

Both parties filed cross-claims in the in-terpleader action. The seller claimed that the buyer had breached the sales contract, so that the seller was entitled to claim the deposit. In an amended cross-claim, the buyer claimed that seller, through her agent, the real estate broker, had falsely represented that the real property which was the subject of the sales contract extended to the high-water line of the Atlantic Ocean, and that this land would be conveyed to the purchaser at closing.

Appellant further alleged that such representations were false, were made to induce appellant to enter into the contract, with the intention that appellant rely on these representations, and that appellant did in fact rely upon them, as a result of which he suffered damages. Alternatively, appellant alleged that the representation was an innocent misrepresentation of a material fact which he relied on to his detriment and which would justify rescission.

Appellee moved to dismiss the appellant’s cross-claim as not stating a cause of action on several grounds: (a) that the property description showed that the land was platted and the plat showed that the land did not extend to the high water line; (b) that any representations by appellee’s real estate agents could not be attributed to appellee; (c) that appellant could have surveyed the property (that right is given in the contract) and thus could have discovered that this was not oceanfront property; (d) that an innocent misrepresentation is not a sufficient ground for rescission. Denying an ore tenus motion to further amend, the court dismissed the cross-claim with prejudice, without specifying the ground upon which the dismissal was based, and final judgment was entered for appellee. We will therefore examine the motion to dismiss to determine if the order can be sustained on any ground.

The essential elements of an action for fraud are a false statement of fact by the defendant, knowledge by the defendant that the statement was false at the time it was made, the fact that the statement was made to induce the plaintiff to act in reliance thereon, actual reliance by the plaintiff on the correctness of the statement, and resulting damage to the plaintiff. American International Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975). In order to state a cause of action for fraud or misrepresentation, it is necessary to specifically allege ultimate facts which would show each element. Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA), cert. denied, 183 So.2d 210 (Fla.1965). Mere legal conclusions are fatally defective unless they are substantiated by adequate allegations of ultimate facts. Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963).

Appellant’s amended cross-claim alleges each of these elements except the allegation that appellee knew the representations to be false. So, while appellant’s pleading is deficient in that regard, it is not so deficient as to be uncorrectable by amendment.

However, on the basis of the same facts, appellant alternatively asserted that the false representation was an innocent misrepresentation of a material fact, and in this regard the amended cross-claim stated a cause of action. Whether made innocently or knowingly, misrepresentation of a material fact acted on by the other party to his detriment is a ground for rescission of a contract. In Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927), the Supreme Court held:

Innocent Misrepresentation of Fact. According to the weight of authority, misrepresentation of material facts, although innocently made, if acted on by the other party to his detriment, will constitute a sufficient ground for rescission and cancellation in equity. The real inquiry is not whether the party making the representation knew it to be false, but whether the other party believed it to be true and was misled by it in making the contract; and, whether the misrepresentation is made innocently or knowingly, the effect is the same. It is as conclusive a ground of relief in equity as a willful and false assertion, for it operates as a surprise and imposition on the other party; and in such case the party must be held to his representations.

Id., 114 So. at 771. See also Sutton v. Cast-Crete Corporation of Florida, 197 So.2d 556 (Fla. 2d DCA 1967).

Appellee’s argument that the legal description would indicate that the land was not oceanfront property by reference to the recorded plat, and that the same information would have been disclosed to appellant had he secured the survey as he had a right to do, similarly does not eliminate appellant’s cause of action. In Besett v. Basnett, 389 So.2d 995 (Fla.1980), the Supreme Court departed from its earlier ruling in Potakar v. Hurtak, 82 So.2d 502 (Fla.1955), where it had held that a complaint did not state a cause of action for fraudulent misrepresentation absent an allegation that plaintiff made a diligent effort to investigate the truth of the representations or that he was prevented from doing so. In Besett, the court adopted the view expressed in Upledger v. Vilanor, Inc., 369 So.2d 427 (Fla. 2d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979), and the Restatement (Second) of Torts, § 540 (1976) as follows:

Duty to Investigate. The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.

389 So.2d at 997.

With regard to the allegations of agency, the objection was not to any insufficiency of representation purportedly made by appellee’s real estate agent, but the objection was based on the ground that any such representations could not be attributed to appellee. It is clear that statements made by an agent within the scope and course of his employment may be attributable to the principal, even though the agent may not be specifically directed by the principal to make that statement. Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). If, as alleged, appellee’s agent, the real estate broker, represented to a potential buyer of the property that the property extended to the oceanfront, it would appear that such portrayal of the property would be within the scope of the agent’s authority, just as would any other description of the property made in attempting to induce someone to buy it. This case is only in the pleading stage, and for purposes of the motion to dismiss, all allegations are taken to be true. The allegation is sufficient to charge the statement to appellee.

It thus appears that the amended cross-claim was sufficient to state a cause of action and should not have been dismissed. Certainly, it should not have been dismissed without further leave to amend, because it was not clear that no amendment would permit the statement of a cause of action. Hansen v. Central Adjustment Bureau, Inc., 348 So.2d 608 (Fla. 4th DCA 1977).

The order dismissing appellant’s cross-claim with prejudice and the final judgment in favor of appellee are reversed, and the cause is remanded for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . Neither can it be said, by reference to the pleadings, that the representation was obviously false. Attached to the original complaint as an exhibit, is a copy of the sales contract to which is attached a copy of the aerial map showing the residence in question in relation to the Coastal Construction Set Back Line. The line, which is drawn 50 feet from the line of the mean high water mark of the Atlantic Ocean [sec. 161.052, Fla.Stat. (1979)], runs through the residence of the property involved here, and although no property lines are shown, the map can be considered as support for the allegation that the property was represented to be oceanfront property.


author: COBB, Judge.

text:
    BOYCE CONSTRUCTION CORPORATION and United States Fidelity and Guaranty Co., Appellants/Cross-Appellees, v. The DISTRICT BOARD OF TRUSTEES OF VALENCIA COMMUNITY COLLEGE f/u/b/o Diversified Design Enterprises, Inc., Appellee/Cross-Appellant.
    No. 81-870.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    Ronald W. Brooks of Brooks, Cooper & Marks, Orlando, for appellants/cross-appel-lees.
    Richard A. Leigh of Leonhardt, Trickel, Leigh, Gibson, Martin & Jones, Orlando, for appellee/cross-appellant.
   COBB, Judge.

Boyce Construction Corp. (Boyce) was the general contractor on a construction project for Valencia Community College. Diversified Design Enterprises, Inc. (Diversified) was a subcontractor providing certain equipment for the gymnasium. Diversified sued Boyce for breach of contract for failing to pay the contract price for materials furnished and work performed. The action was based solely on one count: breach of an express written contract. Boyce answered and filed a counterclaim against Diversified for failure to meet the contract specifications and for delay of the project.

A trial without jury was held. At the close of plaintiff’s case in chief, the defendant moved for an involuntary dismissal on the ground that the plaintiff had failed to establish a prima facie ease. The trial court denied the motion, stating that it had the authority “to make the probata conform to the allegata.” (The converse apparently was intended). No motion to amend the pleadings was made then or at any time during trial by the plaintiff. See Fla.R. Civ.P. 1.190(b).

After all of the evidence was presented, the trial court entered a judgment finding that Diversified had breached the contract justifying termination by the defendant Boyce, but also finding that the plaintiff was entitled to recover on a theory of quantum meruit. The court found that Boyce was entitled to a set-off for the cost to it of the incomplete work, but denied any recovery to Boyce on its counterclaim for delay, stating that the evidence that such delay was caused by Diversified was unconvincing. This latter finding was announced verbally by the trial judge at defendant’s motion for rehearing, but was not included in the written judgment. The written judgment that was entered against Boyce was for the amount of $12,290.38, a figure arrived at by deducting itemized costs incurred by Boyce from the remaining unpaid balance of the contract at the time of breach, with the addition of interest, attorney fees and costs. Boyce objected to, and has appealed, the trial court’s allowance of an amendment, apparently on its own initiative, thereby adding a count in quantum meruit to plaintiff’s complaint.

There are several problems with upholding the “equitable” approach taken by the trial judge. First, wording of Rule 1.190(b) itself does not support an amendment adding quantum meruit counts. There is authority for the proposition that a court should not allow an amendment in the absence of a party’s motion therefore. See Pokress v. Tisch Florida Properties, Inc., 153 So.2d 346 (Fla. 3d DCA 1963). Perhaps this problem could be surmounted by appel-lee based upon the argument that the rule recognizes that such a motion may be made by a party at any time, even after judgment and, in the instant case, there was an ore ten us motion to so amend made by counsel for plaintiff at a post-judgment hearing on the defendant’s motion for rehearing. The motion was somewhat superfluous at that time since, in effect, it had already been initiated and granted by the trial court sua sponte. Indeed, the trial court treated it as superfluous and did not expressly rule on the motion other than by denying defendant’s new trial motion.

Nevertheless, the fundamental problem is that, under the rule, there was no evidentia-ry basis for granting the motion, even had it been made at trial by the plaintiff, other than the fact that the trial court may have felt that the plaintiff had failed to prove its contract action. The evidence presented at trial was fully consistent with the contract action; it was not objectionable, although arguably insufficient. Thus, there was no basis for any finding by the trial court that the defendant’s failure to object to some particular item of evidence e.g., the contract price, constituted an express or implied consent of the defendant to try the issue of plaintiff’s entitlement to recover under a theory of quantum meruit. Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA), review denied, 392 So.2d 1373 (Fla.1980); Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA); cert. denied, 339 So.2d 1167 (Fla.1976); and Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968).

In order to support a claim for quantum meruit to recover for labor performed and materials furnished in good faith under an illegal contract, the claimant may recover the reasonable value of the labor performed and the market value of the material furnished. Moore v. Spanish River Land Company, 118 Fla. 549, 159 So. 673 (1935). That is not the instant situation if, as purportedly found in the final judgment, the plaintiff materially breached the contract justifying termination by the defendant. Where a party in breach of a contract has rendered substantial benefits to the non-breaching party which it would be unjust to forfeit without any payment, and the loss occasioned by the breach does not equal or exceed the benefit, then the defaulting party may recover the excess of the benefit over the loss. That recovery, however, cannot be more than a ratable portion of the total contract price where such a portion can be determined. Although the contract price is evidence of the benefit, it is not conclusive. Restatement (Second) of Contracts, § 374 (1979).

In the instant case there was no evidence presented to the trial court which could support a finding that an unpled issue (quantum meruit) was tried by the express or implied consent of the defendant per Florida Rule of Civil Procedure 1.190(b). The plaintiff presented no evidence, other than the contract price and remaining balance thereof, to provide a proper case for relief based upon the theory of quantum meruit. Hence, it was error for the trial court to inject that issue into the case on its own initiative.

Apparently recognizing the problem presented by the trial court’s misapplication of the quantum meruit doctrine, the appel-lee argues on appeal that, despite the contrary language of the judgment, it “is not a judgment in quantum meruit but is in fact a judgment for the full contract price based upon the substantial completion of the project by the appellee ...” In support of this contention appellee relies upon the cases of Oven Development Corporation v. Molisky, 278 So.2d 299 (Fla. 1st DCA 1973) and Viking Communities Corporation v. Peeler Construction Company, 367 So.2d 737 (Fla. 4th DCA 1979).

We agree that the doctrine of substantial performance prevails in this state and that “a contractor who substantially performs and is in good faith is entitled to enforce the contract even if performance has been less than complete.” Viking, 367 So.2d at 739. We further agree that, had the court below found the contract substantially completed, its method of computing damages was correct. The “substantial performance” argument is supported by several statements in the record made by the trial court below, including its verbal denial of the defendant’s counterclaim for delay. But to adopt this argument, we must disregard the express finding by the trial court that the defendant was entitled to terminate the contract because of the plaintiff’s breach, and therefore was left only with a recovery based on quantum meruit.

Faced with an irreconcilable conflict between what the trial court said and what it did, we believe that justice can be served in this case only by reversal and remand for new trial, with leave to freely amend the pleadings prior to trial upon motion by either party. Cf. Neveils v. Thagard, 145 So.2d 495 (Fla. 1st DCA 1962). See also Remsberg v. Mosley, 58 So.2d 432 (Fla.1952).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

      . Quantum meruit is an action at law (assump-sit) based upon a theory of implied contract. Moore v. Spanish River Land Company, 118 Fla. 549, 159 So. 673 (1935); Neveils v. Thagard, 145 So.2d 495 (Fla. 1st DCA 1962).

      . The rule in effect at the time of the trial of this cause read:
      (b) Amendments to Conform with Evidence.
      When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the case are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.
      Fla.R.Civ.P. 1.190(b).


text:
    JONES, MORRISON, STALNAKER, P.A., Appellant, v. CONTEMPORARY COMPUTER SERVICES, INC., Appellee.
    No. 81-1140.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    Charlene D. Kelley of Baldwin & Dikeou, Fern Park, for appellant.
    James B. Bogner of O’Neill, Bogner & Larsen, Orlando, for appellee.
   COBB, Judge.

The issue in this case is whether the trial court committed reversible error by refusing to give a jury instruction requested by the appellant law firm, Jones, Morrison, Stalnaker, P.A. (“Jones”). We hold that it did, and reverse.

The record indicates that Jones purchased a software computer package from the ap-pellee, Contemporary Computer Services, Inc. (“Contemporary”), for $4,000. Alleging the package did not perform as Contemporary had represented, Jones revoked its acceptance of the package and sued Contemporary, demanding a refund of the purchase price, as well as incidental and consequential damages. Contemporary answered Jones’ amended complaint, and alleged several affirmative defenses. The case was tried before a jury, which awarded Jones $500 damages on its claim.

At trial, the court refused to give Jones’s requested instruction 13, which stated:

Should you find the Plaintiff entitled to damages, you should award it:
1. A refund in full of the purchase price it paid for the computer program and computer language.
2. Those reasonable expenses, if any, incurred by Plaintiff as a result of the breach.

The court told Jones’s counsel she could tell the jury “what damages you want in your closing arguments.” Jones argues that the court’s refusal to give this instruction constitutes reversible error.

Jones based its action for purchase price and incidental and consequential damages on section 672.711(1), Florida Statutes (1979), which provides:

Where ... the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (s. 672.612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid.. .. (Emphasis added.)

Jones’s requested instruction 13 was therefore a correct statement of the applicable law.

In Keyes Co. v. Shea, 372 So.2d 493 (Fla. 4th DCA 1979), the trial court refused to specifically instruct on the proper measure of damages; instead, it instructed the jury to “determine in dollars the total amount of losses which the greater weight of the evidence showed [the plaintiff] sustained as a result of the incident complained of.” 372 So.2d at 495. Finding that the instruction “gave the jury no guidance on the proper measure of damage to use in determining their verdict,” the Fourth District held the trial court erred “in failing to adequately and correctly instruct the jury on the proper measure of damages under one of the theories of plaintiffs case.” Id. In the present case, the general instruction on damages given by the court was similar to the one found deficient in Keyes:

Should you find in favor of Plaintiff, JONES, MORRISON, AND STALNAKER, P.A., you should award Plaintiff such damages as have, from the greater weight of the evidence, been proven to your satisfaction.

Jones’s requested instruction 13 would have guided the jury as to the exact damages sought — if the jury concluded Jones had proved its cause of action and that Contemporary had failed with its affirmative defenses, Jones was entitled to recover at least the full purchase price.

Finding Contemporary’s arguments on appeal unpersuasive, we conclude the failure to give the requested instruction constitutes harmful error, and reverse and remand for a new trial.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . Contemporary counterclaimed for various services; the jury awarded it $950 damages. This award is not a part of the appeal.

      . This assumes the return of undamaged equipment.


text:
    Robert Walter BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1146.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.

      James B. Gibson, Public Defender, and J. Peyton Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The appellant, Britton, contends that the court below erred by allowing the state to call a witness in rebuttal. He argues the witness’ testimony was both improper rebuttal and cumulative.

Rebuttal evidence explains or contradicts material evidence offered by a defendant. Kirkland v. State, 86 Fla. 64, 97 So. 502 (1923). See also Dornau v. State, 306 So.2d 167 (Fla.2d DCA 1974), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975). The testimony delivered by the state’s rebuttal witness neither explained nor contradicted any evidence offered by Britton. Permitting the testimony, however, was not error: the order of presentation of evidence and witnesses is largely a function of the trial court’s discre tion; this discretion is broad enough to allow the state to introduce, after the defendant’s case, evidence not strictly in rebuttal, so long as the evidence was admissible in the main case. Williamson v. State, 92 Fla. 980, 111 So. 124, 53 A.L.R. 250 (1926); Davis v. State, 44 Fla. 32, 32 So. 822 (1902). See also 23 C.J.S. Criminal Law § 1045 (1961). Because the trial court properly eliminated a hearsay problem in the proffered testimony, the testimony presented to the jury was admissible in the state’s case in chief. Therefore, the court did not err by permitting the “rebuttal” testimony.

As for Britton’s argument that the testimony was unnecessarily cumulative, it is not error to permit a state witness to testify after the defense has rested, even if the evidence is merely cumulative, in the absence of the defendant’s showing injustice amounting to an abuse of discretion. Williamson, 111 So. at 126-27; Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959). Britton has failed to demonstrate such prejudice.

The judgment below is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Britton has yet to be sentenced.


author: SHARP, Judge.

text:
    Charles Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 81-1291.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

COBB and UPCHURCH, F., JJ., concur.


author: MILLS, Judge.

text:
    Van William DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. AD-440.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Michael Allen, Public Defender, Melanie Ann Hines, Asst. Public Defender, for appellant.
    No appearance for appellee.
   MILLS, Judge.

Davenport’s appeal from the trial court’s denial of his motion for reduction of sentence pursuant to Fla.R.Crim.P. 3.800 is dismissed because such orders are not appeala-ble. Ziegler v. State, 380 So.2d 564 (Fla.App.1980); Hallman v. State, 371 So.2d 482 (Fla.1979), affirming 343 So.2d 912 (Fla. 2d DCA 1977).

McCORD and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    WILLARD KAUFMAN COMPANY, Self Insured Services, Appellants, v. Charles RAWLINGS, Appellee.
    No. AE-326.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Bernard J. Zimmerman and W. Michael Miller, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Ronald J. Langa and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, Orlando, for appellee.
   SHIVERS, Judge.

The employer/carrier raise five points for review in this workers’ compensation appeal. We affirm on all points. The deputy commissioner found that claimant suffered a compensable heart attack. The employer/earrier was ordered to pay: temporary total disability (TTD) benefits from the date of the accident until such time as claimant reaches maximum medical improvement (MMI); all medical bills incurred from the accident; taxable costs and a reasonable attorney’s fee.

There is substantial competent evidence supporting the finding that claimant’s heart attack was compensable. Thus, the award of TTD benefits was proper. However, as the employer/carrier has pointed out and claimant has conceded, it was improper to have awarded TTD benefits from the date of the accident until such time as claimant reaches MMI. An injured claimant can be less than totally disabled without having reached MMI. National Airlines v. Rowley, 9 F.C.R. 262 (1975). The capacity to return to work is the critical issue in determination of TTD. Thus, although claimant was TTD at the time of the award, he may regain, at least partially, his ability to return to work before he reaches MMI. Accordingly, we affirm the award of TTD benefits but amend the order to reflect that such benefits shall continue until claimant reaches MMI or is able to return to work. Fowler Harvesting v. Thompson, 394 So.2d 1086 (Fla. 1st DCA 1981); Lake Highland Nursing Home v. Everett, 397 So.2d 380 (Fla. 1st DCA 1981).

We also affirm the portion of the award requiring the employer/carrier to pay the medical bills of Florida Hospital and Dr. Robert Boswell, even though no timely medical reports were filed pursuant to Section 440.13(1), Florida Statutes. The deputy commissioner properly excused the filing requirements for good cause since, among other things, the treatment was rendered in an emergency situation. See Sunland Training Center v. Brown, 396 So.2d 278 (Fla. 1st DCA 1981). We note that claimant was seen by Dr. Boswell on two occasions after his discharge from the hospital. These visits do not fit within this emergency situation context. However, we find that any error in excusing the filing requirements for these two bills was harmless. The employer/carrier has not demonstrated how it was prejudiced by the failure of Dr. Boswell to timely file medical reports for these visits, especially since it was the employer/carrier’s position from the outset that claimant’s heart attack was not com-pensable and no medical treatment would be authorized.

Apportionment was properly denied here since there was no medical evidence that claimant, in fact, had a pre-existing condition; and, even assuming that he did, there was no evidence that it was disabling prior to the compensable heart attack. See, Stephens v. Winn-Dixie Stores, Inc., 201 So.2d 731 (Fla.1967). Finally, the award of costs and attorney’s fees is also sustained.

The order of the deputy commissioner is therefore AFFIRMED and AMENDED in accordance with this opinion.

ERVIN and WENTWORTH, JJ., concur.


text:
    SPARTON ELECTRONICS and CNA Insurance Group, Appellants, v. Brenda HEATH, Appellee.
    No. AG-199.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Wendell J. Kiser and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, P.A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier (E/C) appeal a compensation order finding the claimant entitled to temporary total disability (TTD) benefits through the date of maximum medical improvement, wage loss benefits thereafter, and costs. We affirm in part and reverse in part.

There is competent substantial evidence in the record to support a finding of wage loss. Since wage loss benefits were properly obtained, costs were assessable against the E/C. Section 440.34(2), Florida Statutes (1979).

The E/C contend that insufficient notice of the claim for TTD was given. We agree and reverse the award of TTD benefits. The claimant filed a “shotgun” claim identifying TTD as one of the benefits sought. This, however, does not give the E/C notice that TTD will be litigated at some specific hearing. The notice of hearing and application for hearing must provide this, Orin Cummings Construction Co. v. Beckman, 395 So.2d 629 (Fla. 1st DCA 1981). Unfortunately, neither of these items is in the record on appeal. Nonetheless, the claimant does not dispute that neither of these identifies TTD as an issue for the hearing. Since such notice is required, the award of TTD was error.

McCORD, J., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


text:
    HATTAWAYS, INC. and Florida Farm Bureau Insurance Company, Appellants, v. Betty SMITH, Appellee.
    No. AG-258.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    James M. Hess of Driscoll, Langston, Layton & Kane, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier raise four issues in their appeal from the workers’ compensation order awarding wage loss benefits and penalties. We reverse.

The employer/carrier correctly assert the deputy erred in holding the hearing on this claim before the wage loss benefits were due. Section 440.20(4), Florida Statutes (1979), and Rule 38F-3.18(3)(a) of the Florida Department of Labor and Employment Security, Division of Workers’ Compensation, give the employer/carrier 14 days from the date of receipt to accept the wage loss request and pay benefits. In this case, the hearing was held nine days after the carrier received the wage loss request. The deputy did not comply with the statute and the rule and, therefore, the employer/carrier were denied due process.

Appellee concedes error in the imposition of penalties.

Because this case must be remanded for a new hearing, we will not address the other two issues.

McCORD and SHIVERS, JJ., concur.


author: WIGGINTON, Judge.

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. GEOPHYSICAL SERVICES, INC. and Fidelity & Casualty Company and Underwriters Adjusting Company, Appellees.
    No. AG-336.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Nancy L. Cavey, Tallahassee, for appellant.
    J. Nixon Daniel, III, Pensacola, for appel-lees.
   WIGGINTON, Judge.

This appeal presents a novel question regarding employer/carrier claims for reimbursement from the Special Disability Trust Fund. The deputy commissioner ordered reimbursement in this case, and the Fund urges error in the deputy’s failure to bar the claim pursuant to Section 440.49(5)(g), Florida Statutes (Supp.1978). We affirm.

To provide an incentive for employers to hire the disabled, the Florida Legislature enacted Section 440.49 which reimburses employers and carriers for “excess liability” they incur when a disabled worker has an industrial accident that creates a disability greater than it would have been without his preexisting condition. Here, the carrier applied for reimbursement before it paid out any “excess” compensation, and by letter of September 8, 1980, the Fund denied the carrier’s claim for this reason.

Subsequently, the carrier paid excess compensation, and on December 1, 1980, it notified the Fund, requesting reimbursement. Once again the Fund denied the claim. It contends that the carrier was barred by Section 440.49(5)(g) which provides:

If the Special Disability Trust Fund through its representative denies or controverts the claim, the right to such reimbursement shall be barred unless an application for a hearing thereon is filed with the division at Tallahassee within 60 days after notice to the employer or carrier of such denial or controversion [footnote omitted].

In essence, the Fund has argued that the carrier’s failure to timely appeal the Fund’s September 8 denial letter has automatically resulted in a bar to the subsequent claim for reimbursement. The deputy disagreed. So do we.

The statute does not require the deputy to bar this claim. Plainly, it requires that when a carrier takes an appeal to a deputy, that appeal must be timely. The statute does not contemplate a situation where, as here, a claim is dismissed because it is filed too early, causing the carrier to file a subsequent claim. The deputy correctly concluded that the original claim was not ripe for adjudication when the Fund issued its September 8 denial, so any application for hearing then would have been purposeless.

Under the Fund’s interpretation of the statute, this employer/carrier would be forever barred from reimbursement simply because it filed its claim prematurely. We decline to apply such a technical and mechanistic interpretation of the statute.

The deputy commissioner’s order is affirmed.

BOOTH and WENTWORTH, JJ., concur.


author: McCORD, Judge.

text:
    ESQUIRE BEACH MOTEL and Boston Old Colony Insurance Company, Appellants, v. Rosa WILLIAMS, Appellee.
    No. AG-446.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   McCORD, Judge.

Appellants appeal only from that portion of a workers’ compensation order which awarded attorney’s fees to appellee based upon a finding that employer/carrier acted in bad faith in its payment of temporary disability benefits to appellee. We reverse.

The evidence shows that employer/carrier paid TTD benefits for each period during which appellee’s treating physician declared that appellee was not able to work. No medical evidence in the record contradicts the treating physician’s assessment of appellee’s ability to work. However, the deputy commissioner awarded ap-pellee temporary disability benefits for periods other than those during which her treating physician stated that she was unable to work. Appellee did not conduct an adequate work search for the periods in question. The record does not support the deputy commissioner’s finding of bad faith and, therefore, the award of attorney’s fees on that basis was error.

Appellants also contend that the DC erred in directing them to pay a $115 hospital bill upon which the record contains no evidence. We agree and direct that that portion of the order referring to the bill be stricken.

REVERSED.

MILLS, J., and TILLMAN PEARSON, (Retired) Associate Judge, concur.


text:
    Frank R. EVERALL, Appellant, v. STATE of Florida, Appellee.
    No. AG-481.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Appellant appeals from an adjudication of guilt and imposition of sentence following his plea of nolo contendere with reservation of the right to appeal the trial court’s denial of his motion to suppress. We affirm.

In Jacksonville, on June 5, 1981, at approximately ten o’clock in the evening appellant was seen driving erratically by a member of the Jacksonville sheriff’s office. After being stopped, appellant was given the standard field sobriety test which, in the opinion of the officer, he failed. A breathalyzer test yielded a reading of .04. Appellant was arrested for driving under the influence.

At the time of the arrest, appellant’s pick-up truck was parked in a bank parking lot. Because it posed no danger to traffic, the arresting officer gave appellant the option of signing a waiver form, locking the truck and leaving it where it was, or having the truck impounded by police.

While there is some dispute in the record, the trial court found that appellant refused to sign the waiver, saying that he had “valuables” in the truck. In addition, appellant expressed a desire not to have the truck impounded, because he did not want to pay the towing fee. Instead, appellant suggested that he be allowed to telephone or that the officer telephone some friends of appellant who lived “about five minutes away” from the scene of the arrest. This alternative was flatly rejected by the officer as being contrary to department policy. Because appellant continued to refuse to sign a waiver form, the officer decided to impound the truck. An inventory search was conducted and two bags of marijuana and approximately 10. quaalude tablets were discovered.

At trial, appellant moved to suppress the evidence seized during the inventory search on the grounds that, because the alternative he presented was reasonable, it was unnecessary to impound the truck and the evidence was, therefore, illegally seized. The trial court denied appellant’s motion finding that the inventory search was conducted in good faith, that the impoundment was lawful, reasonable and necessary, and that appellant’s alternative to impoundment was not reasonable. The trial court was of the opinion that requiring an officer to call a vehicle owner’s friends to the scene of an arrest, and wait there until they arrived, placed an unreasonable burden on time and manpower of the police and would unnecessarily delay booking and processing of the individual arrested.

If the owner or possessor of a vehicle is reasonably available and presents a reasonable alternative to the impoundment of his vehicle, it ceases to be necessary to impound it, and police may not do so. Miller v. State, 403 So.2d 1307 (Fla.1981). The question then is whether the trial court erred in holding the alternative presented by appellant was unreasonable. We think the court was correct for two reasons. First, we agree that the alternative suggested by appellant would place an unreasonable burden on police time. Appellant could have accomplished his purpose by signing the waiver form and making his telephone call from the police station. His refusal to sign the waiver form gave the officer the option of remaining at the scene of the arrest until such time as appellant’s friends arrived, regardless of how long that took. As the trial court suggested, this would have the effect of delaying processing of the individual arrested, and preventing the officer from making his services available elsewhere should they be needed.

We also think that requiring an officer to call strangers to the scene of an arrest, and to wait there until they arrive, puts thé lone officer at unnecessary risk.

To hold otherwise would require us to, in effect, adopt a per se rule requiring an arresting officer in every case to summon an acquaintance of the arrestee and wait for his arrival on the scene to take possession of the vehicle. This we decline to do.

AFFIRMED.

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


text:
    Anthony ESPERTI, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-95.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Anthony Esperti, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

Esperti appeals Commission action mitigating his previously established presumptive parole release date by only one year. We affirm.

No abuse of the Commission’s discretion has been shown. The Commission’s policies were adequately explained in the order.

McCORD, J., and TILLMAN PEARSON, (Ret.), Associate Judge, concur.