text:
    Bob GRAHAM, individually and in his official capacity as Governor of the State of Florida; and Louie L. Wainwright, individually and in his official capacity as Secretary of Florida Department of Corrections, Appellants, v. James VANN, Larry Anderson, Harry Mungin, Charles Green, Willie Middleton, James Sparks, William Hill, Phillip Elliott and Floyd Price, Appellees.
    No. XX-474.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Jim Smith, Atty. Gen., Kent A. Zaiser, Asst. Atty. Gen., Tallahassee, for appellants.

      Alan R. Parlapiano, Public Defender, Jack J. Fine, Asst. Public Defender, Gaines-ville, for appellees.
   PER CURIAM.

This cause is before us on an interlocutory appeal from a peremptory writ of mandamus. The appellees are inmates at Florida State Prison at Starke, Florida, who contend that they have been, and are being, denied certain fundamental constitutional rights as the result of inadequate security measures, inadequate staff training, insufficient number of staff members, overcrowded conditions and physical plant deficiencies.

On May 29, 1980, the inmates petitioned for a writ of habeas corpus. The trial court issued an order directing the appellants to appear and show cause why the writ should not be issued and an evidentiary hearing should not be held. The appellants appeared at a June 5, 1980 hearing at which time they filed a motion to dismiss and/or response to petition for writ of habeas corpus. The hearing resulted in a denial of their motion and a finding that habeas corpus was not a viable remedy. The court found, however, that probable cause existed for the issuance of a peremptory writ of mandamus and entered an order directing the appellants to show cause why such a writ should not issue. On August 20, 1980, the appellants appeared before the court, but declined to present any direct evidence or testimony in response to the show cause order. The judge appointed an Advisory Commission to explore, investigate, define, evaluate, and recommend alternative approaches to the problem. On October 3, 1980, the appellants filed their response to the report of the Advisory Commission. The judge found the response inadequate and ordered the appellants to reduce the inmate population to not more than 750 prisoners on or before 10 days from the order; to file within 11 days of the order a report in which the names, offenses, Department of Corrections numbers and new locations of the transferred inmates were listed; to submit a plan for implementation of the recommendations of the Advisory Commission to the court within 30 days, and to seek accreditation of the prison by the American Corrections Association.

In their appeal from the order, the appellants present the following four points for our consideration: whether there is competent substantial evidence to support a finding that the constitutional rights of the appellees are being denied by the appellants; whether the trial court erred in treating this cause as a class action; whether the trial court erred in granting relief by way of mandamus; and whether the trial court erred in granting the relief ordered without considering the possibility and effect of compliance.

The record overwhelmingly supports the finding that an emergency situation continues to exist at Florida State Prison resulting in a denial of the appellees’ constitutional rights, necessitating the need for corrective action.

The appellants apparently concede that the original petition seeks relief for the appellees only and is inoffensive. They argue, however, that the metamorphosis to class action results from the judge’s order requiring prison inmate reduction. We disagree. Reduction of the prison population would appear to be one viable remedy available to the judge to correct an unconstitutional situation that the Department of Corrections appears to be unable or unwilling to redress. The following excerpt from the record sheds light on the frustrations encountered by the judge and convinces us that there is no merit to the assertion that the court is insensitive to the possibility and effects of compliance with its order and has overreacted:

I don’t believe there are many within the sound of my voice that would disagree with the general statement that the Department has returned, but the balance of the response to that goes on.
“The suggestion that staff be transferred to Florida State Prison from other facilities is not a realistic solution. The solution which underwrites mandatory transfer of experienced staff to Florida State Prison would ignore current literature and experience in the management area.”
The response of the Department is in the court file and it is a multi-paragraph response to each of the findings, short-term and long-term recommendations. Essentially, some are agreed to with the “imminent change of certain conditions.” Others are referred to as being up to the Legislature and beyond the Department’s control.
The Department has indicated they will seek additional twenty-two, I believe, Correctional Officer II slots, some of which, I assume, would be lateral transfers of Correctional Officers I presently and others might be new.
The bottom line of this response is — appears to me to be business as usual by the State of Florida.
On the Clerk’s desk in front of me are two rather large stacks of documents. Those are copies of the incident reports of violence within the past two years at Florida State Prison at Starke. The homicide rate at Florida State Prison at Starke has approached one death every other month since the first of the year. Indeed, if memory serves, there was a murder there on Monday after the advisory commission reported. The stabbing incidents there continue and I give the staff at the Florida State Prison at Starke credit for doing everything they are able to do to deal with the problem. The staff of Florida State Prison at Starke, for reasons set out in the commission report and others, I think are simply unable to deal with the problem as it must be dealt with.
I have great confidence in the report of the commission. The vitae attached to the report indicate that this commission is one of persons with qualifications in the corrections area that should know what they’re talking about. In essence that commission said these are the things wrong and this is what is needed to correct it and they said if we can’t do these things to correct it, then an immediate reduction in population is the alternative.
Now, the Department says four hundred or four hundred and fifty people moved from the Florida State Prison would exacerbate the problems elsewhere. No doubt that’s true.
In addition, I am advised that the Legislature will be in special session in the next month and I presume it’s within the purview of the Respondents in this case to make such requests of the Florida Legislature to deal with the problem that Respondents feel is consistent with the needs shown.
The people have paid or will be paying roughly sixteen thousand four hundred and six dollars for the report of the special advisory commission, consultants’ fees, costs of transcripts, court reporter fees and transcripts. That is entirely too much to spend not to heed recommendations made by that commission.
Accordingly, this Court finds that the violent conditions previously found to exist at Florida State Prison at Starke continue to exist. This Court finds the response of the Respondents filed in this cause inadequate. In order to deal with the continued loss of life at the Florida State Prison together with the continuing assaults on prisoners and custodial officers by inmates, does find that an emergency continues to exist.

In their challenge to the peremptory writ of mandamus the appellants correctly point out that mandamus is an extraordinary remedy based on equitable principles which will issue only upon a showing of a clear legal right in the petitioners to the performance of a legal duty or ministerial act. The writ cannot be used to compel a public agency clothed with discretion to exercise that discretion in a given manner. Evans v. St. Regis Paper Co., 287 So.2d 296 (Fla.1974); Hunter v. Solomon, 75 So.2d 803 (Fla.1954). It is argued that the appellees have not demonstrated that they are entitled to any legal right which the appellants are denying them. In light of the judge’s findings, which we have determined are supported by the record, this position is untenable. Louie L. Wainwright as Secretary of the Department of Corrections is charged with supervising and directing the promulgation of Department rules that effectuate the legislative purpose. That purpose is spelled out in the Florida Statutes (1979) as follows:

20.315 Department of Corrections.— There is created a Department of Corrections.
(1) PURPOSE. — The purpose of the Department of Corrections is to integrate the delivery of all offender rehabilitation and incarceration services that are deemed necessary for the rehabilitation of offenders and protection of society. The goals of the department shall be:
(a) To protect society by providing incarceration as an appropriate deterrent to the commission of crime.
(b) To protect society by substituting for retributive punishment methods of training and treatment which correct and rehabilitate offenders who violate laws.
(c) To provide an environment for incarcerated persons in which rehabilitation is possible. This should include the protection of the offender from victimization within the institution and the development of a system of due process and internal legality in institutions.
(d) To provide meaningful community supervision for offenders on parole and probation and to develop community alternatives to traditional incarceration which could be safely used.
(e) To provide rehabilitative programs, which may include both academic and vocational education, to incarcerated offenders and offenders being supervised in the community.
(f) To provide judges with effective evaluative tools and information for use in the sentencing decision.
(g) To provide the necessary level of security in institutions.

The appellees have a clear legal right to be confined in an institution where they are free from victimization by other inmates. The Department of Corrections has an equally clear legal duty to provide the ap-pellees with such incarceration. Mandamus will issue to compel the performance of that duty. Moore v. Florida Parole & Probation Commission, 289 So.2d 719 (Fla.1974); Battis v. Florida Parole & Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). We do not view the trial order as an attempt to direct the appellants to exercise discretion in a circumscribed manner, but rather an attempt to compel the Department of Corrections to comply with constitutional requirements.

The order is accordingly affirmed.

SHIVERS, SHAW and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: HUBBART, Chief Judge.

license: Public Domain

text:
    David LOGIN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1551.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Stephen K. Johnson and Jon R. Phillips, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and PEARSON, DANIEL S., JJ.
   HUBBART, Chief Judge.

The central question presented for review by this appeal is whether a “seizure” of the person takes place within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution when a police officer approaches an individual, identifies himself through proper police credentials, and begins to ask questions of the individual. We hold that such conduct, without more, does not constitute a “seizure” of the person within the meaning of the above constitutional provisions. We further conclude that: (a) the plain sight observations made by the police during their pre-detention contact with the defendant in this case constituted probable cause for the defendant’s subsequent arrest; and (b) the trial court properly denied the defendant’s motion to suppress the evidence seized incident to the defendant’s arrest. We, accordingly, affirm the judgment of conviction and sentence from which this appeal is taken.

I

The facts pertaining to the instant search and seizure are as follows. On January 11, 1978, at 5:25 p. m., Detectives William Johnson and Miguel Magdalena of the Dade County Public Safety Department were assigned to a special airport narcotics detection unit at the Miami International Airport. They were at that time monitoring passengers boarding early evening flights to California. They were in plain clothes and did not visibly display any weapons. Their attention was directed to the defendant David Login as he was standing in line at the National Airlines ticket counter. The defendant was, in the officer’s opinion, acting abnormally nervous, looking around at the faces of the people near him very closely. The defendant was also carrying a hemp-woven, carry-on bag and had no other luggage. When he reached the ticket counter, the defendant took a large amount of cash from his pocket and paid for the ticket in cash. The defendant then started for concourse F where the gates to National’s Los Angeles flights were located. The police detectives followed.

We now come to the crucial facts of the police encounter with the defendant. Detective Johnson walked up alongside the defendant while the latter was en route to concourse F, showed the defendant his badge and identification card, and said, “I am a narcotics officer with the sheriff’s office and I would like to talk to you; do you have a minute?” The defendant stopped and relied, “Yes.” At the precise moment after the defendant had come to a complete stop and police questioning began, Detective Johnson noticed two rings of white residue, one around each nostril of the defendant’s nose. Based on his training and experience, Detective Johnson immediately recognized this white residue to be cocaine. In addition, he noticed the defendant’s eyes were glassy, a condition consistent with use of cocaine. These factors, plus the defendant’s nervousness, led Detective Johnson to believe that the defendant was under the influence of cocaine. In the meantime, Detective Magdalena joined Detective Johnson on the concourse at some point shortly after the defendant had stopped.

At this time, Detective Johnson asked to see the defendant’s identification and plane ticket. The defendant responded by going through his coat pockets, which appeared to be stuffed to capacity, during which time Detective Johnson caught a fleeting glimpse of a plastic bag containing a white substance which appeared to be cocaine. The defendant stated that he did not have any identification, but did produce for police inspection a one-way plane ticket to Los Angeles in the name of “S. Welsh.” During the entire time the defendant was looking for identification, his hands were shaking and he was slowly inching backwards away from the detectives.

Detective Johnson then asked the defendant to step into the police office at the airport which was located a few feet away. The defendant complied and went with the detectives to a large storage closet area set aside for police use. Once inside, Detective Johnson asked the defendant what he had inside his pockets. The defendant replied that he had nothing. Detective Johnson then formally placed the defendant under arrest for possession of cocaine. The defendant thereupon attempted to flee and had to be physically subdued by the officers. The police then searched the defendant’s person and seized a large quantity of cocaine contained in plastic bags in all of the pockets of the defendant’s jacket as well as the cowboy boots the defendant was wearing. The police also searched the defendant’s carry-on bag and seized an additional quantity of cocaine.

The defendant was subsequently charged by information in several counts with a series of offenses, including a count for unlawful possession of cocaine with intent to sell [§ 893.13(l)(a) 1 Fla.Stat. (1979)], in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant filed a pre-trial motion to suppress the above cocaine seized from him by the police which, in fact, formed the basis of the above criminal charge against him. The trial court heard and denied the motion on the basis that the police observation of the cocaine residue on the defendant’s nose took place prior to any stop of the defendant, that this observation constituted probable cause under the circumstances to arrest the defendant, and that the search herein was incident to a valid arrest of the defendant.

The defendant thereupon entered a nolo contendere plea to the charge of unlawful possession of cocaine with intent to sell, specifically reserving for appellate review the trial court’s denial of the motion to suppress; the state nolle pressed the other counts in the information. The trial court accepted the defendant’s nolo contendere plea as conditioned above, adjudicated the defendant guilty as charged, and sentenced the defendant to five years in the state penitentiary.

The defendant appeals, asserting as error the denial of the motion to suppress. We have jurisdiction to entertain this appeal and to consider the defendant’s sole point on appeal. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971); § 924.06(1)(a), Fla.Stat. (1979).

II

The law is well-settled that a search and seizure conducted without benefit of a search warrant, as here, is presumptively unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution. See e. g. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). There are certain exceptions, however, to this general rule requiring search warrants. One of those exceptions is that the police may conduct a warrantless search and seizure incident to a valid arrest of the defendant. See e. g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 24 L.Ed.2d 685 (1969); State v. Gustafson, 258 So.2d 1 (Fla.1972), aff'd., 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). It was this exception that the trial court relied on in sustaining the reasonableness of the warrantless search in the instant case.

Crucial to invoking the above exception to sustain the instant search, in our view, is the trial court’s determination below that the defendant had not been seized by the police within the meaning of the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution when Detective Johnson observed the cocaine residue around the defendant’s nostrils. If this be correct, the residue was lawfully observed in plain view during a pre-detention encounter which, in turn, gave the police probable cause under the circumstances to arrest the defendant and conduct a search incident thereto. See e. g. State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Parnell, 221 So.2d 129, 131-133 (Fla.1969); Fletcher v. State, 65 So.2d 845 (Fla.1953). On the other hand, if the trial court was incorrect on this issue and the defendant was temporarily seized when the cocaine residue was observed, then, as the trial court itself recognized, that seizure was unreasonable as based on mere suspicion, Reid v. Georgia, — U.S. —, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), which, in turn, made the plain view cocaine observation unlawful and the subsequent arrest and incidental search of the defendant, based thereon, unreasonable. See e. g. Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975). Our inquiry must center, then, on whether the police officers’ initial encounter with the defendant on the airport concourse amounted to a “seizure” in the constitutional sense.

A

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution guarantee to the people the right “to be secure in their persons ... against unreasonable ... seizures” by government agents. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). A person has been seized within the meaning of the above constitutional provisions “whenever a police officer accosts an individual and restrains his freedom to walk away....” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1979). Not every encounter, however, between police and citizen amounts to such a seizure. Indeed, it has been recognized that police-citizen encounters are incredibly rich in diversity and that most do not rise to the level of police seizures. “Only when the [police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. at 20 n.16, 88 S.Ct. at 1879 n.16. In each case, the crucial consideration is whether the person approached by the police was “under a reasonable impression that he [was] not free to leave the officer’s presence” and in determining whether such a reasonable impression existed, “the test must be ‘what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.’ ” State v. Frost, 374 So.2d 593, 597 (Fla. 3d DCA 1979), following United States v. Wylie, 569 F.2d 62 (D.C.Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978).

B

In the instant case, Detective Johnson approached alongside the defendant as the latter was walking on the airport concourse at the Miami International Airport, displayed his badge and identification, and said to the defendant, “I am a narcotics officer with the sheriff’s office and I would like to talk to you; do you have a minute?” The defendant replied, “Yes” and stopped. At that precise moment, after the defendant had stopped and police questioning began, the cocaine residue around the defendant’s nostrils was observed by the police. A short period of police inquiry ensued during which time the defendant surrendered his plane ticket, which the police apparently retained. The police then, in effect, ordered the defendant to a large closet storage area nearby which had been set aside for police use at the airport. The police, once inside this room, then formally arrested the defendant and searched him.

Our decision in State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979), directly controls here as the defendant- was not temporarily seized within the meaning of the applicable constitutional provisions until the police, as in Frost, obtained possession of the defendant’s plane ticket and retained it during their questioning of the defendant; and the arrest of the defendant did not take place, in accord with Royer v. State, 389 So.2d 1007, 1015-1020 (Fla. 3d DCA 1980), until the police, in effect, ordered the defendant to their small interrogation room. As such, the cocaine residue observation by the police made prior to the police retention of the defendant’s plane ticket took place during a pre-detention encounter with the defendant and was therefore lawfully made. This observation, in turn, together with the other circumstances herein, gave the police probable cause to arrest the defendant and conduct a warrantless search incidental thereto. State v. Gustafson, 258 So.2d 1 (Fla.1972), aff'd, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Fletcher v. State, 65 So.2d 845 (Fla.1953); §§ 901.15(3), 901.21(1), Fla.Stat. (1979).

1

The defendant urges, however, that the question left open in Frost directly faces us in this case, namely, whether to adopt the rule that “a Fourth Amendment stop occurs as soon as [police] officers initially approach an individual, identify themselves, and begin to question him.” State v. Frost, 374 So.2d at 597. It is urged that under this rule the defendant was temporarily seized when Detective Johnson approached the defendant, identified himself and said he wanted to talk to the defendant, as police questioning immediately followed. We agree that such would be the result in this case if the instant rule were adopted in this jurisdiction, but upon further reflection, we must decline to adopt the rule.

It is true that initially we were attracted to the reasoning of those decisions which appear to follow such a rule, State v. Frost, 374 So.2d at 598, as the rule certainly has the advantage of clarity, a not inconsiderable advantage in an area of law as murky and in flux as search and seizure law is. Moreover, if one adds additional coercive factors to the rule, perhaps unspoken in the above decisions — such as the use of police language which in tone and content bespeak an order to stop, particularly when employed during a fast moving criminal investigation on the street — one can hardly quarrel with the result which the rule produces. On balance, however, we must nonetheless reject the rule as being over-broad, containing, as it does, insufficient coercive factors to amount, without more, to a seizure of the person. Indeed, application of such a rule would cover a multitude of police-citizen street encounters which in no way approach a police seizure of the person, such as police questioning of a probable witness to a crime or police inquiries directed to a stranded motorist in need of assistance. To label all police encounters with the public as seizures when accompanied by questioning, no matter how cordial, would tremendously impede the police in the effective performance of both their criminal investigation and community assistance functions as each such contact would require a showing of founded suspicion, an impossible standard to meet in most cases. We cannot accept this result. Moreover, it should be clear beyond doubt that in such encounters no reasonable person, innocent of any crime, would be under the impression that he was not free to leave the officer’s presence.

In this connection, we agree entirely with Mr. Justice White in his concurring opinion in Terry v. Ohio, 392 U.S. at 34, 88 S.Ct. at 1886:

“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.”

This position, as well as the result we reach herein, finds further support in two recent decisions of the Fourth District Court of Appeal, State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); State v. Rawlings, 391 So.2d 269 (Fla. 4th DCA 1980) as well as similar decisions from other jurisdictions. See e. g. Coates v. United States, 413 F.2d 371 (D.C.Cir.1969); State v. Tsukiyama, 56 Hawaii 8, 525 P.2d 1099 (1974); United States v. Burell, 286 A.2d 845 (D.C.App.1972).

2

The defendant further urges that Detective Johnson’s actions and language employed in initially approaching the defendant on the airport concourse in this case were such that any reasonable person, innocent of any crime, would have thought that he had no choice but to stop and talk to the police and was not free to leave the officer’s presence. We cannot agree. Detective Johnson merely walked up to the defendant, properly displayed his police credentials, and stated a desire to speak with the defendant, clearly giving the said defendant an option to refuse by inquiring whether the defendant “had a minute.” It is true that a reasonable person, innocent of any crime, might have felt, out of a sense of politeness and civic duty, that he ought to cooperate with the officer and agree to the officer’s request which, in fact, the defendant did. That is a far cry, however, from concluding, as the defendant urges, that he had no choice in the matter and was compelled to stop and answer questions whether he liked it or not. We cannot so conclude as, in our view, such common social amenities and pressures do not and cannot in themselves amount to an official restraint on personal liberty. State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981). For the foregoing reasons, the trial court correctly denied the defendant’s motion to suppress.

Affirmed.

      . No contention has been made by the defendant, either in the trial court or in this court, that the search of the defendant’s hemp-woven, carry-on bag was not properly incidental to the defendant’s arrest and that a search warrant was constitutionally required in order for the police to search this bag. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); see United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). The issue is, therefore not properly before us for appellate review and we express no opinion thereon. Compare State v. Southwell, 369 So.2d 371, 373 (Fla. 1st DCA 1979).

      . “Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.” Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). “I recognize however, that instances will arise where there will be legitimate contact between a police officer and a citizen, not based upon ‘founded suspicion’ or ‘probable cause,’ which may result in the subsequent arrest of the citizen for a crime detected by the police officer as a result of the legitimate contact. For example, a police officer in the performance of his duty may stop to assist a motorist who has a flat tire or may stop a woman bicyclist at night to warn her of the presence of a rapist in the area. If during these legitimate encounters with the motorist or the woman, the police officer observes stolen stereo equipment in the motorist’s automobile or smells the odor of marijuana emanating from the woman and sees a plastic bag containing what appears to be marijuana protruding from her pocket, he may lawfully seize the evidence.” Mullins v. State, 366 So.2d 1162, 1163 (Fla.1978) (Alderman, J., concurring).


author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

text:
    Jeffry G. PEARL, Appellant, v. FLORIDA BOARD OF REAL ESTATE, Appellee.
    No. 80-347.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Scott T. Eber, Miami, for appellant.
    Frederick H. Wilsen, Tallahassee, for ap-pellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The issue to be decided in this appeal is whether convictions for possession of controlled substances evidence moral turpitude under Section 475.25(l)(e), Florida Statutes (1977), which provides for revocation or suspension of a real estate license for crimes involving moral turpitude. We hold that the statute is not unconstitutionally vague. We hold, however, that possession of a controlled substance does not establish moral turpitude within the purview of section 475.25(l)(e). We reverse.

Appellant Jeffry G. Pearl, a licensed real estate salesman, was adjudicated guilty pursuant to pleas of guilty to three felony counts of possession of a controlled substance. He was placed on probation for five years by the trial court and ordered to pay a fine. The Florida Board of Real Estate filed an administrative complaint calling for the suspension of appellant’s real estate license based upon the commission of crimes involving moral turpitude. Appellant’s motion challenging the constitutionality of the statute was denied. Following a hearing, the Board entered its order adopting the hearing examiner’s recommendations and suspended appellant’s license for sixty days. The sixty-day sentence was based upon the hearing examiner's conclusion that appellant had been rehabilitated by hospital and out-patient treatment and, according to testimony, had been mentally well and a completely different person for over a year. The hearing examiner found, however, that the crimes for which appellant had been convicted constituted crimes involving moral turpitude and recommended suspension.

1. Constitutionality of Section 475.-25(l)(e), Florida Statutes (1977).

Appellant argues that Section 475.-25(l)(e), Florida Statutes (1977) is imper-missibly vague in that it fails to inform persons subject to its provisions of the exact nature of prohibited conduct. Newman v. Carson, 280 So.2d 426 (Fla.1973); State v. Buchanan, 191 So.2d 33 (Fla.1966).

According to Black’s Law Dictionary, moral turpitude is:

An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

Black’s Law Dictionary 1160 (rev. 4th ed. 1968).

The Supreme Court of Florida has defined moral turpitude:

Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society, (citations omitted). It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933). Analyzing these definitions, we find that moral turpitude involves duties owed by man to society, as well as acts “contrary to justice, honesty, principle, or good morals.”

The term moral turpitude has been held sufficiently clear in deportation proceedings, Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951), and is the standard for consideration in proceedings involving disbarment of attorneys, Holland v. Flournoy, 142 Fla. 459, 195 So. 138 (Fla.1940); revocation or suspension of medical licenses, State ex rel. Tullidge v. Hollingsworth, supra; and immigration, United States ex rel. Alvarez Y Flores v. Savoretti, 205 F.2d 544 (5th Cir. 1953).

Finding no denial of due process for vagueness or other constitutional impediment, we hold that Section 475.25(l)(e), Florida Statutes (1977) is constitutional.

2. Crimes involving moral turpitude.

Next, we address the question of whether appellant is guilty of crimes which involve moral turpitude. Section 475.-25(l)(e), Florida Statutes (1977) states that the Board may suspend a license if the licensee has:

(e) Been guilty of a crime against the laws of this state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt.... (Emphasis supplied).

The statute clearly provides that only crimes involving moral turpitude or fraudulent or dishonest dealing lead to license suspension; not every felony conviction requires a license suspension. Crimes constituting violations of one’s duties in dealings with members of society may be classified as crimes involving moral turpitude. Everett v. Mann, 113 So.2d 758 (Fla. 2d DCA 1959). For example, in Florida, mere possession of lottery tickets does not constitute moral turpitude and is not an offense for which the Real Estate Board may suspend a license, Everett v. Mann, supra, but the sale by a physician of bogus diplomas and licenses does constitute moral turpitude. State ex rel. Munch v. Davis, 143 Fla. 236, 196 So. 491 (Fla.1940). Bookmaking has been held to be a crime involving moral turpitude since the public is deprived of legitimate tax revenues by such conduct. Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla. 3d DCA 1968).

In other jurisdictions, crimes which have been held to involve moral turpitude include: extortion, In re Disbarment of Coffey, 123 Cal. 522, 56 P. 448 (1899); embezzlement, In re Shumate, 382 S.W.2d 405 (Ky.1964); use of the mail to obtain property under false pretenses, In re Comyns, 132 Wash. 391, 232 P. 269 (1925); possession of counterfeit money with intent to cheat and defraud persons to whom it is uttered, State Medical Board v. Rogers, 190 Ark. 266, 79 S.W.2d 83 (1935); indecent exposure, Brun v. Lazzell, 172 Md. 314, 191 A. 240 (1937); auto theft, Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115 (1949); possession and transportation of intoxicating liquor under the Prohibition Act, Rudolph v. United States ex rel. Rock, 6 F.2d 487 (D.C.Cir.), cert. denied, 269 U.S. 559, 46 S.Ct. 20, 70 L.Ed. 411 (1925). (Rudolph arose under prohibition. It is unlikely that mere possession of illegally distilled spirits would now be considered moral turpitude. Jenkins v. Beary, 241 So.2d 866 (Fla. 1st DCA 1970 (dicta)).

In reviewing cases from other jurisdictions concerning drug offenses, we find that moral turpitude has been established by the sale of opium, In re McNeese, 346 Mo. 425, 142 S.W.2d 33 (1940); by a physician’s failure to keep a record of narcotics dispensed to a known addict, Brainard v. Board of Medical Examiners of California, 68 Cal.App.2d 591, 157 P.2d 7 (1945); by the sale of morphine, Texas v. Speer, 109 S.W.2d 1150 (Tex.Civ.App.1937); and by the sale of drugs for non-medical use, DuVall v. Board of Medical Examiners of Arizona, 49 Ariz. 329, 66 P.2d 1026 (1937). None of these authorities involves mere possession of drugs. The cited authorities persuade us that mere possession of a controlled substance is not a crime within the contemplation of section 475.25(l)(e). Furthermore, the totality of circumstances and the findings of treatment and rehabilitation entered by the hearing examiner and ap proved by the Board reflect that appellant’s situation should be dealt with in a manner similar to the disposition in Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 435 P.2d 553, 64 Cal.Rptr. 785 (1968) and State ex rel. Schiewitz v. Wisconsin Real Estate Brokers’ Board, 188 Wis. 632, 206 N.W. 863 (1926). In Yakov, a physician was convicted of furnishing amphetamines to treat excessive weight, but since his motive was treatment rather than personal gain, the court found no moral turpitude. In State ex rel. Schiewitz, permitting the use of a building for immoral purposes did not preclude the issuance of a license when subsequent events were taken into consideration.

The intent underlying the enactment of chapter 475 is to insure the protection of the public from unscrupulous and dishonest real estate brokers. Its purpose is to guard against fraudulent real estate practices, State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225 (1929); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). In Reid, the court, evaluating the theft of a three-dollar steak, found no moral turpitude, stating that penal sanctions should be imposed “only upon clear and convincing proof of substantial causes justifying the forfeiture.” Reid v. Florida Real Estate Commission, supra at 851. The penalty of suspension should be sparingly and cautiously used and directed at the dishonest and unscrupulous. Pauline v. Borer, 274 So.2d 1 (FIa.1973). The potential for selective enforcement should be avoided.

In conclusion, we find an absence of legislative intent to make guilt of every crime a basis for suspension of a real estate license. If the legislature wishes to protect the public to that extent, it may enact legislation encompassing all crimes. Under the law involved in the case before us, and applying that law to the facts and circumstances here involved, we hold that since appellant was not found guilty of a crime involving moral turpitude, the suspension of his real estate license was unjustified.

Reversed.

DANIEL S. PEARSON, Judge,

dissenting.

“In law ... the right answer usually depends on putting the right question.” Rogers v. Helvering, 320 U.S. 410, 413, 64 S.Ct. 172, 174, 88 L.Ed. 134 (1943).

I express no view on whether the majority has provided the right answer to the question of whether the felony possession of a controlled substance is a crime of moral turpitude. The trouble is that Pearl never asked that question on this appeal.

Pearl’s sole point on appeal is this:

“475.25(l)(e), FLORIDA STATUTES, WHICH PERMITTED THE BOARD TO SUSPEND PEARL’S REAL ESTATE SALESMAN’S LICENSE UPON A FINDING THAT HE HAD COMMITTED A CRIME OR CRIMES INVOLVING ‘MORAL TURPITUDE’ WAS UNCONSTITUTIONALLY VAGUE AND DID NOT PROVIDE PEARL WITH DUE PROCESS OF LAW AS REQUIRED BY THE UNITED STATES AND FLORIDA CONSTITUTIONS.”

His one and one-half page brief is limited to the argument that the term “moral turpitude” is vague, fails to provide adequate notice, and thus denies him due process of law. Viewed charitably, this argument simply does not embody the question whether, if the statute is held constitutional, Pearl’s crime is one involving “moral turpitude.”

Except to recognize fundamental error, e. g., Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980), which is not present here, we do not decide questions not raised on appeal. I agree with the majority that Section 475.25(l)(e), Florida Statutes (1977), is not unconstitutionally vague. That answers the only question before us. I would leave for another day, when the issue is properly before us, the question of whether the felony possession of a controlled substance is a crime of moral turpitude under this section. I would affirm the judgment below.

      . Concededly, Pearl raised this separate point in the proceedings below. Merely because the point was thus preserved for our potential review does not relieve Pearl of the obligation to present the point to us.


author: DANIEL S. PEARSON, Judge.

text:
    HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM, a/s/o ABC Pools, Inc., and ABC Pools, Inc., Individually, Appellants, v. CONCRETE EQUIPMENT, INC., Appellee.
    No. 80-825.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Pyszka & Kessler, P. A. and John C. Hamilton, Miami, for appellants.
    Batchelor, Brodnax, Guthrie, Armstrong & Freyer and Alvaro L. Mejer, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Holyoke Mutual Insurance Company paid its insured, ABC Pools, Inc., for damages to ABC’s property allegedly caused by a defective product sold to ABC by Concrete Equipment, Inc. Under the terms of the insurance policy and by operation of law, see, e. g., Rebozo v. Royal Indemnity Company, 369 So.2d 644 (Fla. 3d DCA 1979), Holyoke became subrogated to the cause of action, if any, which ABC had against Concrete.

Some two years after these events, ABC Pools, Inc. was involuntarily dissolved for failure to file its annual report. Thereafter, Holyoke, in its name, as subrogee of ABC, sued Concrete.

Concrete moved to dismiss Holyoke’s complaint, contending that suit could only be brought in the name of ABC, the insured. The trial court agreed. Holyoke amended its complaint, now naming ABC as plaintiff for the use and benefit of Holyoke. Concrete parried with a motion to abate the action on the ground that ABC, a dissolved corporation, had no standing to sue. Since ABC was not only statutorily dissolved, but was indisputably defunct, the action, at first abated, was ultimately dismissed with prejudice. Caught in this Catch-22, Ho-lyoke appealed. We reverse.

We hold that neither Holyoke’s amended complaint brought in the name of ABC for the use and benefit of Holyoke, nor Ho-lyoke’s complaint brought in the name of Holyoke as subrogee of ABC, was subject to dismissal. The trial court is directed upon remand to vacate its dismissal of, and reinstate, whichever of these complaints Ho-lyoke chooses to prosecute.

Holyoke, a subrogee of ABC's cause of action against Concrete, had the right, as the real party in interest, to prosecute the action in its name. Fla.R.Civ.P. 1.210(a); Rosenthal v. Scott, 150 So.2d 433, 436 (Fla.1961) (rehearing); Indian River State Bank v. Hartford Fire Insurance Co., 46 Fla. 283, 328, 35 So. 228, 244 (1903); Rebozo v. Royal Indemnity Company, supra; Emmco Insurance Company v. Bankston, 163 So.2d 24 (Fla. 3d DCA 1964). Accord, State Farm Mutual Automobile Insurance Company v. Robbins, 237 So.2d 208 (Fla. 4th DCA 1970); Morgan v. General Insurance Company of America, 181 So.2d 175 (Fla. 1st DCA 1966). This rule of law is challenged by Concrete. Because Concrete’s challenge has illusory support, we address it.

A statute providing that “any civil action at law may be maintained in the name of the real party in interest” was first enacted in Florida in 1870, repealed in 1873, and re-enacted in 1881. See Indian River State Bank v. Hartford Fire Insurance Co., supra. Continuously for the past one hundred years, this state has had a statute or rule permitting the real party in interest to prosecute actions in its name. In Indian River State Bank, supra, the Florida Supreme Court, relying upon the 1881 statute, held that the real party in interest had a right to maintain the action in its name.

“It will be observed that it is here distinctly alleged that Hamburg assigned and delivered the policy to the assignee bank with authority to collect the same and to appropriate out of the proceeds of such collection the debt due from him to the bank, the balance, if any to be accounted for by the bank to Hamburg. Whether this assignment was in writing or not does not appear; but however this may be, we think that it is shown from the allegations of this declaration that the plaintiff bank was such a ‘real party in interest’ in the policy sued upon as to bring it within the purview of our statute authorizing it, as such real party in interest, to sue in its own name alone to recover upon such policy.” 46 Fla. at 326, 35 So. at 243 (emphasis in original).

The court in Indian River State Bank held not only that the bank could sue in its own name, but also that the bank’s amendment of its complaint changing the action from one brought by the bank’s assignor (Hamburg) for the use and benefit of the bank to one brought by the bank in its own name was a permissible amendment. As will be seen, this second holding of Indian River State Bank ultimately leads to the transmogrification of the former holding.

In Atlantic Coast Line Railroad Co. v. Campbell, 104 Fla. 274, 139 So. 886 (1932), the plaintiff insurance company amended its complaint from one brought in its name to one brought in the name of another for the use and benefit of the insurance company. Relying upon the second holding of Indian River State Bank, the court found no error in the amendment:

“... the permission granted plaintiff to make an amendment to declaration to show that the suit was being maintained in the name of Campbell, for the use and benefit of the insurance company instead of in the name of the insurance company alone, was likewise without error under the principles stated in Indian River State Bank v. Hartford Fire Insurance Co., 46 Fla. 283, 35 So. 228 (1903).” 139 So. at 889.

Concrete reads this statement from Atlantic Coast Line Railroad Co. to mean that suit cannot be brought in the name of the real party in interest and that a suit must be brought for the use and benefit of such party. Atlantic Coast Line Railroad Co. announces no such exclusive rule. It merely holds (on the authority of the antecedent holding of Indian River State Bank that a party can amend its complaint to sue in the name of the real party in interest) that a party can amend its complaint to sue in another’s name for the use and benefit of itself, the real party in interest.

The legerdemain which gives Concrete’s challenge illusory support occurs in Gould v. Weibel, 62 So.2d 47 (Fla.1952). There, citing Atlantic Coast Line Railroad Co. as authority, the Supreme Court declared, in dictum:

“Under the law of this state, the legal right to enforce the claim against the tort-feasor remains in the insured, even after payment of the loss by the insurer, and can be enforced by the insurer only in the right of the insured and, at law, only in the name of the insured for the use and benefit of the insurer. Atlantic Coast Line R. Co. v. Campbell for Use and Benefit of National Fire Ins. Co., 104 Fla. 274, 139 So. 886.” 62 So.2d at 49.

This declaration overlooks the holding in Indian River State Bank; contradicts the then extant “real party in interest” statute [Section 45.01, Florida Statutes (1951)]; and, moreover, is totally unsupported by Atlantic Coast Line Railroad Co.

The actual holding of Gould is that where an insurance company, by means of a loan receipt transaction, has advanced to an insured the amount of the insured’s loss, the insured cannot be compelled to bring its action “for the use and benefit of” the insurer. Although it is acknowledged in Gould that under the loan receipt arrangement there involved, it is generally held “that the loan thus made is not, per se, such a payment of insurance as to make the insurer the ‘real party in interest,’ ” 62 So.2d at 48, the decision does not turn on that distinction. Instead, the Gould court decides that even were the insurer a real party in interest, it was not, given the permissive nature of the real party in interest statute, and given the fact that the insured’s action would bar the insurer from a later action on the same claim, a necessary party. Thus, the holding of Gould is not that a suit cannot be prosecuted by the real party in interest, but that a real party in interest need not be joined.

It is in Rosenthal v. Scott, supra, that Gould is unmasked. It is in Rosenthal that we are told:

“It is elementary that a loan receipt and a subrogation agreement are two different legal instruments. Only in the latter is the subrogee the real party in interest who is entitled to bring suit in its own name.” 150 So.2d at 437.

Thus, even had Gould decided, which it did not, that the insurer could not sue in its name, that decision would not apply where the insurer is, as here, a bona fide subrogee (an indemnitor, not a lender) and thus a real party in interest. See also Forsyth v. Southern Bell Telephone & Telegraph Co., 162 So.2d 916 (Fla. 1st DCA 1974). Compare Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978) (where one of the court’s holdings was that an insurer which has not made payment of a loss to an insured is not a subrogee entitled to maintain the action). Holyoke, a bona fide subrogee and real party in interest, had, then, on the authority of Indian River State Bank and its legitimate progeny, the right to sue in its name, the contrary illusion created by Gould notwithstanding.

Alternatively, Holyoke had the right to maintain its action in the name of ABC, for the use and benefit of Holyoke. See Atlantic Coast Line Railroad Co. v. Campbell, supra. Florida’s “real party in interest” rule is permissive only. Cf., e. g., City of Lakeland v. Select Tenures, Inc., 129 Fla. 338, 176 So. 274 (1937); Bringley v. C. I. T. Corporation, 119 Fla. 529, 160 So. 680 (1935); Marianna Lime Products Co. v. McKay, 109 Fla. 275, 147 So. 264 (1933); Jennings v. Pope, 101 Fla. 1476, 136 So. 471 (1931) (holding that the “real party in interest” statute, Section 45.01, Florida Statutes, now embodied in Florida Rule of Civil Procedure 1.210(a), is permissive). Holyoke’s right to maintain the suit in ABC’s name is not changed by the dissolution of ABC. The subrogee inherits only an impediment to the cause of action, see, e. g., Jones v. Bradley, 366 So.2d 1266 (Fla. 4th DCA 1979) (where subrogor’s action was barred by res judicata, subrogee’s action was similarly barred), not an impediment personal to the subrogor. Cf. Holley v. Shaw, 143 Fla. 445, 196 So. 863 (Fla.1940) (prior assignee of subsequently dissolved corporation could maintain action).

We conclude, therefore, that an insurer which has paid an insured’s loss is a subrogee of the insured’s cause of action against a tort-feasor; that such subrogee, as the real party in interest, is permitted, but not required, to prosecute and maintain an action against the tort-feasor in its own name; that such subrogee is alternatively permitted, but not required, to prosecute and maintain an action against the tort-fea-sor in the name of the insured for the use and benefit of the subrogee; and that only a bar inhering in the cause of action of the subrogor will act as a bar to the cause of action brought by the subrogee.

We reverse and remand for further proceedings not inconsistent with this opinion.

      . “Can’t you ground someone who’s crazy?” [asked Yossarian.]
      “Oh, sure, I have to. There’s a rule saying I have to ground anyone who’s crazy.” [said Doc Daneeka.]
      “Is Orr crazy?”
      “He has to be crazy to keep flying combat missions after all the close calls he’s had. Sure I can ground Orr. But first he has to ask me to.”
      “And then you can ground him?” Yossarian asked.
      “No. Then I can’t ground him.”
      “You mean there’s a catch?”
      “Sure there’s a catch,” Doc Daneeka replied.
      “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.”
      “That’s some catch, that Catch-22.”
      “It’s the best there is.” Doc Daneeka agreed.
      J. Heller, Catch-22 46 (2d rev. ed. 1971).

      . Even were the statement not dictum, we would choose to follow the precedent of Indian River State Bank, which we believe accurately states the proper rule of law. We recede from Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978), and Central Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 247 So.2d 94 (Fla. 3d DCA 1971), in which we converted the Gould dictum into a holding.

      . Compare Fed.R.Civ.P. 17(a), which is mandatory. See, e. g., Armour Pharmaceutical Co. v. Home Insurance Co., 60 F.R.D. 592 (N.D.Ill.1973); Reliance Insurance Co. v. Wisconsin Natural Gas Co., 60 F.R.D. 429 (E.D.Wis.1973).

      . We do not decide whether subrogation rights acquired after dissolution would require a different result.


author: PER CURIAM.

text:
    Alix LE CONTE, Appellant, v. Marie Carida LE CONTE, Appellee.
    No. 80-1006.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Harvey D. Rogers and Michael A. Reich-man, Miami, for appellant.
    Carres, Gamble & Hamilton, Coral Gables and Kathy Hamilton, Miami, Elizabeth S. Baker, Legal Services of Greater Miami, Miami, for appellee.
    B'.fore HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975); see, Duncan v. Duncan, 379 So.2d 949 (Fla.1980).


author: BERANEK, Judge.

text:
    Elaine ZANE, Appellant/Cross-Appellee, v. Andrew MAVRIDES, Appellee/Cross-Appellant.
    No. 78-2130.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.

      Jennifer Hurst and Judith Anne Bass, Tobias Simon, P. A., Miami, for appellant/cross-appellee.
    Alan H. Konigsburg, Fort Lauderdale, for appellee/cross-appellant.
   BERANEK, Judge.

This is an appeal by the plaintiff/lender and cross-appeal by defendant/borrower from a final judgment in a suit on a series of loans. We affirm.

Four separate loans were alleged to have been made by plaintiff to defendant, an attorney. The lender’s sister was married to the defendant. In the pleadings, plaintiff alleged she made four demand loans to defendant which had not been repaid. In his answer the defendant denied receiving the proceeds of the loans and also asserted the Statute of Frauds as an affirmative defense.

Notwithstanding the pleadings, the parties proceeded to litigate over a rather different set of issues. The trial court found that the money did pass from the lender to the borrower but that none of the transactions were demand loans. Neither party disputes that there was nothing in writing regarding the loans. All of the terms governing the loans were oral and disputed at trial. After the loans were made the lender’s sister divorced the borrower. The dissolution of marriage prompted the lender to insist on some written evidence of the loans and suit was filed when the borrower refused to sign anything.

The trial court found as a matter of fact that the loans were made to the defendant and found as a matter of law that the Statute of Frauds did not bar enforcement of the loans. We affirm these conclusions of law and fact.

The trial court found four separate loans as follows:

1. Two Thousand Dollars loaned without interest, to be repaid “as soon as able.” The court found this amount not due because plaintiff had not proved defendant was able to repay.

2. Eight Thousand Dollars loaned without interest, to be repaid “as soon as able.” This amount was found not to be due because plaintiff had not proved defendant was able to repay.

3. One Thousand Nine Hundred Dollars loaned without interest to be repaid “as soon as possible.” The court found this amount to be due and entered judgment in plaintiff’s favor.

4. Thirteen Thousand Dollars loaned. The precise terms of repayment of the principal were uncertain from the record, but interest at the rate of ten per cent was to be paid on a monthly basis from the date of the loan. Defendant was found to be in substantial default on payment of interest and no payment whatsoever had been made on principal. Judgment was entered in plaintiff’s favor on this loan.

The court entered final judgment in plaintiff's favor in the total amount of $14,-900 and denied plaintiff’s claim for an additional $10,000 on the other loans due to an insufficiency of proof as to defendant’s ability to pay. The final judgment is attacked by plaintiff’s appeal and defendant’s cross-appeal.

We conclude that the judgment in plaintiff’s favor for $14,900, plus interest, was proper and the factual findings regarding same are supported by competent evidence. The failure to pay interest supports the court’s judgment on the $13,000 loan. We thus affirm in this regard.

Plaintiff contends that the court erred in denying a judgment for an additional $10,000 which was found to be due from defendant “as soon as able.” Plaintiff contends that this court should adopt a rule whereby a loan, to be repaid as soon as the debtor is able, will be held due and owing within a reasonable time rather than requiring the creditor to prove the debtor’s ability to pay. At the time of the trial of this cause, there was no Florida authority directly on point on this issue. Since that time, the Second District Court of Appeal issued its opinion in Hammond v. Bicknell, 379 So.2d 680 (Fla. 2d DCA 1980). Therein, the court adopted a contrary rule. We adopt the ruling of the Second District and conclude that the majority view in the country and the one we think to be the better rule is that an agreement to repay a loan when able creates a conditional promise to pay and that the creditor has the burden of demonstrating the debtor’s ability in this regard. See Hammond v. Bicknell, supra, and cases cited therein. We thus conclude the trial court did not err in denying plaintiff’s prayer for a judgment on the two loans amounting to $10,000.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge.

text:
    FORD MOTOR CREDIT COMPANY, Appellant, v. BIG FOUR CONSTRUCTION COMPANY OF W. P. B., INC., etc., Appellee.
    Nos. 78-2634, 78-2150.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Guy C. Hill, West Palm Beach, for appellant.
    Larry Klein and Johnson, Ackerman & Bakst, West Palm Beach, for appellee.
   LETTS, Chief Judge.

This appeal stems from a trial judge’s ruling that a subsequent suit seeking damages for a deficiency was barred by the doctrine of res judicata because the deficiency could have been obtained in the original complaint in replevin which resulted in the repossession and judicial sale of the heavy machinery involved secured by a chattel mortgage. We reverse.

It is our conclusion that res judicata is inappropriate. The mere fact that the standard complaint in replevin might have supported a deficiency judgment does not preclude a separate seeking of same after repossession and sale.

Section 702.06, Florida Statutes (1977) provides as follows:

702.06 Deficiency decree; common law suit to recover deficiency. — In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency ...

At first blush this entire chapter might be thought to apply only to real estate but that limitation is dispensed with when Section 702.06 is plugged in with the above which seems clearly to provide that a separate suit can be maintained. See also Mabson v. Christ, 104 Fla. 606, 140 So. 671 (1932) and Woodward v. Dishong, 102 Fla. 347, 135 So. 804 (1931).

Appellee however argues on appeal that even if the above be true under normal circumstances, it is not so in the case now before us because the language employed in the replevin complaint “lays the basis for a deficiency judgment” and that the deficiency was prayed for yet not obtained. However, there is no need for us to pass on this question for we see nothing in the language of the complaint employed which supports such an argument. For example, we are directed to the demand that the plaintiff be awarded damages. Such language does not in our opinion necessarily call for a deficiency judgment and even the standard replevin form 1.937 in the Florida Rules of Civil Procedure makes the same demand.

Accordingly, the summary judgment obtained below is hereby reversed and this cause remanded for proceedings in accordance herewith.

REVERSED AND REMANDED.

ANSTEAD and MOORE, JJ., concur.


text:
    John SPARKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-301.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Elton H. Schwarz, Public Defender, and Howardene Garrett, Asst. Public Defender, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Barnhill v. State, 393 So.2d 557, (Fla. 4th DCA 1980). Provided, however, in order to preserve appellant’s rights we certify the following question:

[I]s a person excluded from mandatory classification under section 958.04[2][a], Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

HERSEY and GLICKSTEIN, JJ., and WETHERINGTON, GERALD T., Associate Judge, concur.


text:
    Jordan BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-745.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and John R. Cullom, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was found guilty of grand theft. He appeals the judgment of conviction and sentence, contending the trial court erred in 1) refusing to declare appellant indigent and appoint counsel, and 2) in sentencing appellant for grand theft.

We find no merit in appellant’s first contention. However, there is merit in two aspects of his second argument.

Appellant was charged with grand theft of a second hand television set only. The only proof of value was proof of the cost of the television set and a stand. Thus, upon authority of Edge v. State, 372 So.2d 1162 (Fla. 1st DCA 1979), we reverse the judgment of conviction and sentence and remand the cause to the trial court with directions to vacate the judgment and sentence for grand theft and to enter judgment for petty theft and resentence appellant accordingly.

REVERSED AND REMANDED with directions.

LETTS, C. J., and DOWNEY and HERSEY, JJ., concur.


text:
    Verna ADAMS and Joseph Adams, her husband, Appellants, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, and South Florida Fair and Expositions, Inc., Appellees.
    No. 80-1300.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.

      Thomas A. Hoadley of Hoadley & Gavi-gan, P. A., West Palm Beach, for appellants.
    John J. Bulfin of Pomeroy, Betts, Wied-erhold & Moses, West Palm Beach, for ap-pellee-South Florida Fair and Expositions, Inc.
   PER CURIAM.

Affirmed on the authority of Canteas v. Jeff-son, Inc., 381 So.2d 307 (Fla.3d DCA 1980).

LETTS, C. J., and DOWNEY and HERSEY, JJ., concur.


text:
    James L. FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 80-1593.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    James L. Frederick, pro se.
    Michael J. Satz, State Atty., and Kelly D. Hancock, Asst. State Atty., Fort Lauder-dale, for appellee.
   PER CURIAM.

This is an appeal from the summary denial of a Rule of Criminal Procedure 3.850 motion. The trial court has failed to comply with the explicit requirements of this Rule. The denial of the 3.850 motion is reversed and the matter is remanded to the trial court for an evidentiary hearing.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    Ronda F. CHAPNICK, Relator, v. The Honorable Raymond J. HARE, Circuit Judge of the Seventeenth Judicial Circuit, Broward County, Respondent.
    No. 80-1770.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.

      Carey M. Fischer of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for relator.
    No appearance for respondent.
   HERSEY, Judge.

By petition for writ of mandamus, relator, Ronda F. Chapnick, requests this Court to intercede in proceedings originally commenced in the lower tribunal as a complaint for dissolution of marriage and for child custody.

The complaint was filed by the husband, David I. Chapnick. The court thereby obtained jurisdiction over the husband and jurisdiction over the wife and minor child was subsequently perfected. The wife filed a motion for temporary custody and additional pleadings, but she did not file a counterclaim.

Simultaneously with the Florida proceedings the parties were involved in litigation in the State of Maine, where the wife now resides, involving the same or similar issues. A determination was made under the Uniform Child Custody Jurisdiction Act that Florida was the appropriate state to exercise jurisdiction.

On motion of the husband in the Florida proceedings an order was entered granting him temporary custody for the period September 10, 1980 through September 22, 1980. That order provided in pertinent part:

E. To insure the return of the child to the State of Maine on September 22, 1980, Petitioner shall post a cash bond with the Clerk of the Court in the amount of $200.00, said bond being conditional upon the timely return of Jonathan Chapnick to the State of Maine as set forth herein.
F. Petitioner is advised to timely return the minor child under penalty of contempt of Court.

During the visitation period the husband filed a Notice of Voluntary Dismissal. Neither he nor the minor child have been heard from since.

The wife filed a Motion to Strike Notice of Voluntary Dismissal and Motion to Stay Entry of Judgment which was denied. A motion for rehearing on that motion remains pending.

Simultaneously with the motion for rehearing the wife filed a Motion for Contempt.

On October 17, 1980, relator filed her petition with this Court seeking to compel the lower tribunal to strike or vacate the voluntary dismissal “in order to properly assume jurisdiction of this cause, prevent a fraud on the court and provide for the welfare of the child.”

On November 3, 1980, the lower tribunal entered an order holding the husband in contempt for refusal to return the child as required by the visitation order.

We note at the outset that mandamus is not available to review the appropriateness of an order. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). It is not the proper remedy to correct errors of procedure or judgment. State ex rel. Hillman v. Hutchins, 158 So. 716 (Fla.1935). The lower tribunal did not refuse to exercise its jurisdiction nor has it transgressed the boundaries of its authority in denying wife’s motion to strike the Notice of Voluntary Dismissal.

It is neither a final order nor one of those non-final orders which may be appealed by virtue of Rule 9.130 of the Florida Rules of Appellate Procedure.

If review is obtainable at all it must therefore be by Certiorari.

Clearly the lower tribunal could not be divested of its jurisdiction over the subject matter of the custody aspect of the proceedings by the husband’s voluntary dismissal. Cooper v. Cooper, 194 So.2d 278 (Fla. 2d DCA 1967).

It is equally clear that the voluntary dismissal has no effect (and is therefore subject to being stricken) on the inherent power of the court to protect its integrity. Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979) and cases there cited.

A party may not deprive the court of jurisdiction to enforce compliance with an order entered at the behest of that party. We would therefore order the notice of voluntary dismissal to be stricken but find it to be unnecessary in view of subsequent developments.

The lower tribunal by its order of November 3, 1980, entered after the commencement of these appellate proceedings, expressly recognized the continuance of its jurisdiction both with regard to the custody issue and in connection with violation of the court’s order by the husband. This is very clearly enunciated in paragraph 5 of the order quoted verbatim here:

5. The Order that the Petitioner is alleged to have contemptuously violated is this Court’s Order dated September 12, 1980 which directed the Petitioner to return the minor child of the parties to the State of Maine by September 22, 1980 under threat of contempt should he so violate said Order. As of this date, the Petitioner has not returned said child to the State of Maine. Instead thereof, he has filed a Notice of Voluntary Dismissal in this cause in attempting to divest this Court of its rightful jurisdiction over the welfare of the child and over the enforcement of its own Orders.

We therefore treat the Petition for Writ of Mandamus as one for Writ of Certiorari, which we deny for the foregoing reasons.

CERTIORARI DENIED.

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


text:
    Regina POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1986.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Richard L. Jorandby, Public Defender, and Wilbert Stevenson, Jr. and Cherry Grant, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Bryant v. State, 386 So.2d 237 (Fla.1980).

DOWNEY and ANSTEAD, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Michael YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 80-2134.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.

      Richard L. Jorandby, Public Defender, and Jon May and Michael Dubiner, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Bryant v. State, 386 So.2d 237 (Fla.1980) and Buehler v. State, 381 So.2d 746 (Fla. 4th DCA 1980).

DOWNEY and ANSTEAD, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Eddie ROCKWELL, Appellant, v. STATE of Florida, Appellee.
    No. TT-420.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on appeal from a judgment of conviction for burglary and the sentence imposed of five years. Appellant, tried jointly with his brother, Ernest, contends the trial court erred in denying his motion to sever defendants and by failing to classify him as a youthful offender pursuant to Section 958.04(2), Florida Statutes (Supp.1978). Appellant has failed to demonstrate that the trial court abused his discretion in denying the motion for severance. Dove v. State, 287 So.2d 384 (Fla. 1st DCA 1973), cert. denied 294 So.2d 655 (Fla.1974). Accordingly, the judgment of conviction is affirmed. However, from the record now before us, it appears that the court erred in failing to sentence appellant pursuant to the Youthful Offender Act. In Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), we held that classification as a youthful offender is mandatory if the criteria set forth in Sections 958.04(1) and (2) are met. Accordingly, the sentence is set aside and this cause is remanded for reconsideration by the trial court in light of Goodson, supra.

BOOTH and JOANOS, JJ., and TILLMAN, PEARSON (Retired), Associate Judge, concur.


author: JOANOS, Judge.

text:
    BURGER CHEF OF BRADENTON and American Liberty Insurance Company, Appellants, v. Barbara BENEDETTO, Appellee.
    No. TT-455.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    John J. O’Riorden of Dickinson, O'Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Harry G. Goodheart, III, of Goodheart & Logan, Bradenton, for appellee.
   JOANOS, Judge.

The appellants, Burger Chef of Braden-ton and its insurance carrier, American Liberty Insurance Company, appeal from a Workers’ Compensation order awarding 25% permanent partial disability benefits to the appellee/claimant. The deputy commissioner accepted the 13% anatomical impairment rating given by one of the physicians but increased the disability award to 25% due to wage earning capacity loss. Appellants challenge this award solely on the ground that the claimant failed to conduct an adequate work search as required by Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978). We affirm deputy’s order.

On August 19, 1978, the claimant, an assistant manager of a Burger Chef restaurant, fell on a wet floor and injured primarily her lower back. After the accident, the claimant was seen by six doctors whose treatment ranged from traction to fitting claimant with a full length brace. None of these treatments served to lessen the claimant’s subjective complaints of pain. Based on these complaints, two doctors stated that the claimant was not able to resume active gainful employment although neither doctor could suggest any further medical treatment which might eliminate the pain.

At the hearing, the claimant testified that she had not looked for a job since the accident and listed numerous physical complaints, stating that she found difficulty in performing even simple household chores. In his order, the deputy specifically found that the claimant had not attempted to obtain any form of employment. The deputy also rejected in part the subjective limitations on physical activity which the claimant placed upon herself. Taking these findings into consideration as well as the claimant’s anatomic impairment rating and prior work history, the deputy concluded that the claimant had sustained a 25% reduction in wage earning capacity.

In order to justify an award of permanent disability based on a loss of wage earning capacity in excess of an anatomical disability rating, either the claimant must have made a good faith effort to test her wage earning capacity in the open labor market, Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978), or the circumstances must have justified excusal of the work search, Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976); Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976), Dade County School Board v. Gibavitch, 1981 FLW 61 (Fla. 1st DCA December 19, 1980). In this case, the claimant admitted that she made no attempt to find a job, so her lack of a work search is apparent. The issue, then, is whether a work search was excused under the circumstances.

We find that there is competent substantial evidence to support the deputy’s implicit finding that the claimant’s failure to conduct a work search was excused. A claimant does not need to be confined to bed in order to justify excusing the performance of a work search. See, e. g. Sizemore, supra. In this case, two of claimant’s treating physicians gave the opinion that she was not yet capable of returning to some form of employment. If a work search were required under these circumstances, the claimant would be placed in the awkward position of having to go against her doctor’s advice in order to preserve a disability award based upon loss of wage earning capacity.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


text:
    ORLANDO REGIONAL MEDICAL CENTER and Corporate Group Service, Inc., Appellants, v. Manuel L. JOHNSON, Appellee.
    No. VV-23.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.

      C. E. Miller, of Miller & Cooper, P. A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

The compensation order under review awarded temporary total disability and other benefits. While we approve the award of temporary total disability as being supported by the record, we find merit to the employer’s assertion that the deputy commissioner erred in ordering payment of certain medical and hospital bills and in ordering further medical treatment by a Dr. Baker.

Claimant injured his back in an industrial accident occurring October 6, 1977. The employer, Orlando Regional Medical Center, furnished medical care and treatment and in September, 1978, claimant was awarded two percent (2%) permanent partial disability of the body as a whole. At that time, claimant petitioned for a change of authorized physician from Dr. Gilmer to Dr. Baker. The petition was denied, and claimant continued thereafter under the care of Dr. Gilmer who from time to time rendered claimant palliative care.

On August 14,1979, claimant went to the emergency room of Orlando Regional Medical Center complaining of low back pain. The recorded history failed to list Dr. Gil-mer as claimant’s treating physician. The emergency room physician who examined claimant, having found him in no acute distress, gave him a prescription and released him to go home with instructions to return to the emergency room or to go to a Dr. Tucker (the orthopedic physician on call) if necessary. Ten days later, without securing any other authorization, claimant went to Dr. Baker (Dr. Tucker’s partner) who thereafter treated claimant, including a period of hospitalization for tests for possible disc involvement; all these tests proved negative.

The deputy commissioner found that the treatment by Dr. Baker was authorized “... in that the Orlando Regional Medical Center was the claimant’s employer.” While it is undoubtedly true that Orlando Regional Medical Center was the claimant’s employer, the import of the deputy commissioner’s finding in this respect is that it was the employer which had authorized medical attendance on the part of Dr. Baker, a finding which is not supported by the record.

Claimant’s August 14 visit to the emergency room was obviously not of an emergency nature, as shown both by the report of his examination as well as his failure to visit Dr. Baker until ten days later. Thus, this is not a true emergency situation whereby the emergency room physician would be deemed to have authority from the employer to confer authorization on another physician by reference.

The only other basis upon which the deputy commissioner could have found employer authorization for the medical care rendered by Dr. Baker would be to impute to the employer the instructions which the emergency room physician gave to claimant at the time claimant was examined and released from the emergency room on August 14. The record will not support that conclusion notwithstanding the fortuitous circumstance that the physician’s employer was also the claimant’s employer. To construe the instructions which the emergency room physician gave to claimant as being authorization for treatment by Dr. Baker is tenuous indeed. More importantly, however, the record is devoid of any evidence to show that the emergency room physician had either real or apparent authority to speak for his employer in authorizing medical attendance under Section 440.13, Florida Statutes. The instruction which the emergency room physician gave claimant was nothing more than a routine reference to another physician if the patient deemed further treatment necessary. Claimant’s employer was already furnishing claimant medical attention and claimant’s request for a change of physician had been denied some ten months earlier. If a sufficient change of condition existed such as would have justified an order authorizing a change of physicians, claimant should have followed the statutory procedure. He may not circumvent it by the pretext of an emergency where no true emergency exists.

That portion of the compensation order of March 24, 1980, directing payment of bills of Dr. Baker and the hospital bill, and directing the employer to provide medical treatment and attention under the care of Dr. Baker, is reversed. That portion of the compensation order directing payment of attorney’s fees to claimant’s attorney is reversed and remanded for reconsideration in light of the decrease in benefits to be awarded claimant. Those portions of the compensation order not in conflict with the foregoing are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MILLS, C. J., and WENTWORTH, J., concur.


author: WENTWORTH, Judge.

text:
    PERFORMING ARTS, INC., d/b/a 36 West and Kent Insurance Company, Appellants, v. William GARDNER, Appellee.
    No. VV-88.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    C. J. Budzinski, Hialeah, for appellants.
    Ira J. Druckman, Miami, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order, asserting as error, among other points, the deputy commissioner’s refusal to admit into evidence the claim evaluation prepared by the Division of Workers’ Compensation. We find no reversible error and affirm the order appealed.

Section 440.19(1), Florida Statutes (1980), establishes the division’s claim evaluation procedure, and mandates that:

At any hearing before the deputy commissioner, the decision of the division shall not be res judicata, but shall be included in the case file in the division and shall be deemed a part of the proceeding.

At the hearing in the present case the attorney for employer/carrier sought to introduce the claim evaluation into evidence. The deputy considered the document and determined that it was not sufficiently reliable to be an evidentiary exhibit:

THE DEPUTY COMMISSIONER: We have established that the claim evaluation is based on hearsay....
MR. DRUCKMAN: Move to strike the testimony of that witness on the ground of hearsay.
THE DEPUTY COMMISSIONER: Granted.
MR. BUDZINSKI: May I at this point inquire of the Commissioner exactly what part the evaluation and the statutory directive that this evaluation by this workers’ compensation specialist has in the course of the proceedings on the case? THE DEPUTY COMMISSIONER: Mr. Budzinski, would you believe it ... I don’t know. But I’ll tell you what I’m going to do.
I’m not going to — are you going to offer this into evidence?
MR. BUDZINSKI: I am.
THE DEPUTY COMMISSIONER: I’m going to deny it, ...
Do you want to proffer it?
MR. BUDZINSKI: Yes, sir.
THE DEPUTY COMMISSIONER: I'll accept your proffer. I don’t have any alternative but to do that, and I’ll do that gladly .... and it's going to be the ruling of this Commissioner, Deputy Commissioner, that depending upon the quality of the claim evaluation I’m going to make a determination on the ad hoc case as to its admissibility.... But it’s been my experience on the two claims that I have seen that the claims specialist has participated in that they contain out-and-out rank hearsay, backyard gossip, rumor, and unsupported allegations.
I’ll give you an example of it in this case in particular. “Dr. Kuhl denied this fraudulent request.” That is a conclusion which Mr. Milner [claims specialist] could reach or couldn’t reach or what have you, and I don’t — I just don't think that’s appropriate.
He next raises what he denominates was questionable. “Why would a man with a back injury attempt to play tennis while he’s still under treatment by a doctor for a back injury?” All of these things are done by telephone without the right of explanation, cross examination, and what have you ....
Now, in specific, to answer your question. The statute says that the claims evaluations shall be made a part of the proceedings ....
I’ll instruct the court reporter to make it a part of the proceeding, but I’m not going to accept it into evidence, especially with the claim specialist saying it was all based on hearsay ....
So I’m going to mark the claim evaluation dated January 24, 1980 as a proffer. I’m going to specifically instruct the court reporter at this time to make sure that in the event this case is appealed to the First District Court of Appeal, that the court reporter have the claim evaluation be made a part of the record. I’m going to mark it as a Proffer 1 on behalf of the employer/carrier, but notwithstanding the fact it is being marked as a proffer, I want it included in the appellate record of transcript in the event of an appeal by either party.

We conclude the deputy properly refused to admit the claim evaluation into evidence after considering its merits above noted, and directing the court reporter to include the document in the record as “a part of the proceeding.”

Section 440.19(1) does not provide that the claim evaluation shall be admitted into evidence, but states that it “shall be deemed a part of the proceeding.” While the document may be admitted into evidence in appropriate circumstances, the mandate of § 440.19(1) is satisfied upon inclusion in the record in the same manner as the claim and notice to controvert pursuant to Rule 18(a)(1), WCRP; the deputy may then give the claim evaluation the consideration it is entitled to in the circumstances of each case.

The order appealed is affirmed.

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


text:
    JUDICIAL ADMINISTRATIVE COMMISSION, State of Florida, and South Carolina Insurance Company, Appellants/Cross-Appellees, v. Marlene MARKS, Appellee, and Civil Division of County Courts, State of Florida, Division of Risk Management, and Crawford & Company, Appellees/Cross-Appellants.
    No. VV-124.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    John F. McMath, Miami, for appellants/cross-appellees.
    Michael A. Miller and Donna L. Bergh, Orlando, for appellee.
    Jerry V. Wilkey, Coral Gables, for appel-lees/ cross-appellants.
   PER CURIAM.

The claimant is a 28-year-old woman who suffered two industrial accidents while employed as a legal secretary to a county court judge. At the time of the first accident, South Carolina Insurance Company (South Carolina) was the carrier. At the time of the second accident, the State of Florida Division of Risk Management (Division) was the carrier. South Carolina appeals the deputy commissioner’s award of 25% permanent partial disability benefits to the claimant, his apportioning a higher percentage of the permanent partial disability against South Carolina, and his assessment of penalties. We find no merit in the Division’s cross-appeal nor in South Carolina’s second point on appeal; however, we reverse on the first and third issues presented on appeal.

Section 440.25(3)(b), Florida Statutes (1978), reads in pertinent part:

No judge of industrial claims [now deputy commissioner] shall either make a finding of, or award compensation for, a disability for physical impairment that is greater than the greatest disability given the claimant by any examining or treating physician, except upon stipulation of the parties.

We note that the physician who gave the claimant the highest rating, Dr. Rallen, initially testified as to a 25% permanent partial disability. However, upon a review of the evidence he changed his testimony and gave her a 20% rating. Therefore, the deputy commissioner erred, understandably, in finding a 25% permanent partial disability.

The deputy commissioner also erred in ordering both carriers to pay penalties. Section 440.20(5), Florida Statutes (1978), provides for a 20% penalty on compensation which is not timely paid unless a notice to controvert is filed. However, this statute providing for the assessment of a penalty for delay in payment relates only to temporary disability payments and has no application for permanent disability benefits. See Kuhle v. Kirk, 177 So.2d 329 (Fla.1965); Massey v. Haynie, 180 So.2d 331 (Fla.1965).

For the foregoing reasons, the order is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LARRY G. SMITH and McCORD, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: MILLS, Chief Judge.

text:
    Donald ROGERS, Appellant, v. CONCRETE SCIENCES, INC., and Liberty Mutual Insurance Company, Appellees.
    No. WW-235.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.

      David L. Kahn of Kahn & Gustafson, Fort Lauderdale, for appellant.
    C. Randal Morcroft, Fort Lauderdale, for appellees.
   MILLS, Chief Judge.

We affirm the Deputy Commissioner’s denial of claimant’s attorney’s Motion to Enforce Settlement.

The relevant facts in this case are not in dispute. Claimant Rogers was injured in an accident on 26 September 1978. On 4 February 1980, the employer-carrier made an offer to settle the claim. The claimant died on 12 February 1980 and eight days later claimant’s attorney accepted the settlement offer on behalf of the claimant and his estate.

Under Section 440.20(10), Florida Statutes (1978), a lump sum settlement agreement between an employer-carrier and the claimant is not final and enforceable until or unless it has been approved by the Deputy Commissioner. Brantley v. A. D. H. Building Contractors, Inc., 215 So.2d 297 (Fla.1968). Either party may legally withdraw from a settlement agreement pri- or to the Deputy Commissioner’s approval.

The second basis for our affirmance is on grounds not raised by the parties. Claimant’s attorney urges that under the general principles of contract law, workers’ compensation law aside, a settlement agreement in writing should be enforced. We fail to concur with the basic premise of this contention that there was a contract. The facts establish that the client died after the written offer was made by the employer-carrier but before the offer was accepted. The death of a client terminates the relationship between the attorney and client and the attorney’s authority to act by virtue thereof is extinguished. Bee Construction Corp. v. Gonzalez, 383 So.2d 1093 (Fla. 1st DCA 1980). See also Brickell v. McCaskell, 106 So. 470, 90 Fla. 441 (1925). Thus, the attorney here had no authority to accept the offer under the circumstances.

We are aware of Section 709.01, Florida Statutes (1978), which makes lawful any act by an attorney for the principal that would have been lawful if the principal were still living, but that statute is applicable only when the attorney did not know of the principal’s death at the time the action was taken. The facts of this case show that the attorney knew of the client’s death at the time he purported to accept the offer.

AFFIRMED.

ROBERT P. SMITH and WENTWORTH, JJ., concur.


text:
    BURDINES and Liberty Mutual Insurance Company, Appellants, v. Anna Ray BARTLESON, Appellee.
    No. WW-266.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Anthony J. Beisler and Frank E. Malo-ney, Jr., Fort Lauderdale, for appellants.
    Philip M. Warren, of Sullivan, Ranaghan, Bailey & Gleason, Pompano Beach, for ap-pellee.
   PER CURIAM.

The deputy commissioner’s order for permanent partial disability benefits of $48.24 per week for 142 weeks is amended to correct the scrivener’s error and to require payment for 140 weeks instead, and as amended it is AFFIRMED. This appeal, based entirely on that scrivener’s error in the deputy’s order, would have been averted had appellant’s counsel consulted with appellee’s counsel and with the deputy. Instead, the appeal delayed for several months the payment of compensation not otherwise contested and needlessly utilized public resources in this court’s processing of the appeal.

MILLS, C. J., ROBERT P. SMITH, J., and WILLIAM C. OWEN, Jr., (Retired), Associate Judge, concur.


author: SHAW, Judge.

text:
    PINELLAS COUNTY BOARD OF COUNTY COMMISSIONERS; R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Ken JOMO, Appellee.
    No. XX-12.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Jeffrey R. Fuller of Williams, Earle, Brasfield & Wertz, P. A., St. Petersburg, for appellants.
    H. Shelton Philips of Keleel & Kaleel, P. A., St. Petersburg, for appellee.
   SHAW, Judge.

This is an appeal from an order wherein the Deputy Commissioner awarded temporary total disability benefits based solely upon the following stipulation:

The parties stipulated and the undersigned Deputy Commissioner approved the stipulations as follows: that the Deputy Commissioner has jurisdiction of the parties and the subject matter herein; that notice of accident and notice of hearing were properly and timely given; that venue properly lies in Pinellas County; that at all times material for the determination of the issues herein there existed between the respective parties an employer/employee relationship with workers’ compensation insurance coverage afforded by and through R. P. Hewitt & Associates of Florida, Inc.; that the claimant’s average weekly wage is $182.47 with an applicable compensation rate of $109.48; that on July 21,1978, the claimant was injured in an accident arising out of and in the course and scope of employment, sustaining a cervical injury causally related to that accident; that the accident caused the injuries complained of; that maximum medical improvement was achieved June 25, 1980; that temporary total disability payments were made timely until April 14, 1980; that no permanent partial disability payments have been accepted or paid; that none of the medical reports were received into evidence.

The Deputy Commissioner awarded temporary total disability benefits from April 15, 1980 to and including the date of maximum medical improvement, June 25, 1980. The only basis we can discern for the award is the Deputy’s erroneous belief that, as a matter of law, the claimant is entitled to temporary total disability benefits from the date the carrier ceased voluntarily paying said benefits to the date of maximum medical improvement. This is a mistaken concept. The burden of proof in this instance was upon the claimant to show his entitlement to benefits during the claimed period of disability. There being nothing in the record to demonstrate a basis for such an award, the Deputy’s order is not supported by competent substantial evidence.

The order is reversed, and the claim for temporary total disability benefits from April 15,1980 to June 25,1980, is dismissed.

SHIVERS and THOMPSON, JJ., concur.


author: SHIVERS, Judge.

text:
    Earnest James FINLEY, Appellant, v. STATE of Florida, Appellee.
    No. XX-369.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Earnest James Finley, in pro. per.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

This is an appeal from an order of the Circuit Court denying appellant’s petition for writ of habeas corpus on the grounds that the petition was legally insufficient on its face. We affirm.

Appellant filed a petition for writ of ha-beas corpus in the Circuit Court which had imposed his judgment and sentence, alleging that the double jeopardy clause precluded him from being convicted and sentenced for robbery with a deadly weapon because robbery was the underlying felony upon which his 1978 first degree murder conviction was based. See, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Pinder v. State, 375 So.2d 836 (Fla.1979). Therefore, he sought to have his conviction and sentence for robbery vacated. The Circuit Court denied the petition on the grounds that it was legally insufficient on its face.

The Circuit Court properly denied the petition for habeas corpus for two reasons. First, the Circuit Court was without authority to issue the writ of habeas corpus. State ex rel. Wainwright v. Holley, 234 So.2d 409 (Fla. 2d DCA 1970); Ruiter v. Wainwright, 249 So.2d 67 (Fla. 2d DCA 1971). Section 79.09, Fla.Stat. (1979), requires that a petition for habeas corpus before a circuit court must be filed with the circuit court of the county in which the prisoner is detained. Since appellant was detained in Highlands County at the time of the filing of the petition below, the petition should have been filed in the Circuit Court for Highlands County rather than the Circuit Court for Okaloosa County.

Additionally, the remedy of habe-as corpus is not available as a substitute for post-conviction relief under Rule 3.850, Fla. R.Crim.P. An application for writ of habe-as corpus shall not be entertained where the applicant has failed to first apply for post-conviction relief, provided a motion for post-conviction relief is adequate to test the legality of the detention. Zungia v. State, 184 So.2d 659 (Fla. 1st DCA 1966), cert. denied, 189 So.2d 635 (Fla.1966), cert. denied, 385 U.S. 962, 87 S.Ct. 404, 17 L.Ed.2d 307 (1966); Fla.R.Crim.P. 3.850. Therefore, since the issue raised in appellant’s petition for habeas corpus may be raised by a motion for post-conviction relief, his failure to exhaust this remedy precludes habeas relief.

Accordingly, the appealed order is AFFIRMED.

SHAW and THOMPSON, JJ., concur.