text:
    Bernard BOLENDER, Appellant, v. STATE of Florida, Appellee.
    No. 59333.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Rehearing Denied Dec. 20, 1982.

      Gerald D. Hubbart, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for appel-lee.
   PER CURIAM.

Bernard Bolender appeals his convictions of first-degree murder and the trial court’s imposition of multiple death sentences after the jury had recommended life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the convictions and sentences.

The state charged Bolender and two co-defendants with four counts of first-degree murder, four counts of kidnapping, and four counts of armed robbery for the brutal torture slayings of four alleged drug dealers. Bolender was tried separately because one codefendant, Paul Thompson, had been adjudicated incompetent and the second co-defendant, Joseph Macker, pled guilty to reduced charges and became a state witness. Macker received concurrent life sentences on all twelve counts, plus fifteen years on a possession of cocaine charge.

The testimony at trial indicates that on the evening of January 8, 1980 the code-fendants were at Macker’s residence when two of the victims, John Merino and Rudy Ayan, arrived to participate in a drug deal. An argument erupted and Bolender, armed with a gun, ordered the two to strip. A short while later Thompson entered holding Scott Bennett, another subsequent victim, at gunpoint. Thompson said he had surprised Bennett lurking in the bushes outside, armed with two guns. Thompson also discovered a kilogram of cocaine on Bennett which the defendants confiscated. Macker testified that at that point he picked up a gun and went outside to see if anyone else was hiding. He saw a car driving back and forth in front of the house and motioned the driver to come inside. The driver would not. Thompson then ordered Merino to get dressed, and the two of them lured the driver, Nicomedes Hernandez, into the house.

The defendants ordered the additional victims to strip and robbed all four of their jewelry. Thompson left to search the car driven by Hernandez and returned with approximately $3,000 in cash and two more guns. At that point Bolender threatened to kill all four if they did not reveal the location of an additional twenty kilograms of cocaine.

Macker testified that during the ensuing hours the victims were tortured and terrorized in an attempt to obtain their cocaine. He stated that Bolender used a hot knife to burn the back of Hernandez. Bolender also kicked the victims and beat them with a baseball bat and even shot Hernandez in the leg in an attempt to make him talk. The victims insisted, however, that they only had one kilogram of cocaine and not the twenty that Bolender wanted. Macker admitted hitting Merino with the baseball bat but denied any further involvement in the beatings, saying that Bolender dominated him and Thompson. Later they wrapped the victims in sheets, rugs, bedspreads, and the material from a beanbag chair. Bolen-der and Thompson placed them in the blue Monte Carlo Hernandez had been driving. John Merino was still alive at this point; the others were, presumably, dead. Bennett’s and Ayan’s bodies were placed in the trunk, Merino in the back seat, and Hernandez in the front. At approximately 4:30 a.m. Bolender and Thompson left with the Monte Carlo and Bolender’s car and drove onto the 1-95 expressway. They parked the car on the side of the expressway a short distance past the entrance ramp. Intending to bum the ear and the victims, they poured gasoline on the vehicle and the surrounding grass and set the grass on fire as they left. Burning the car failed, however, because several motorists saw the fire and put it out.

The defendants thoroughly cleaned the Macker home, removing the bloodied carpeting from the bedroom and living room and scrubbing down the walls. Later, several of the sheets and rugs found wrapped around the bodies were identified as coming from the Macker home. Bolender’s fingerprints were found on the Monte Carlo, and on January 13, 1980 he and Macker were arrested for the murders. Five days later Macker gave a statement implicating himself, Bolender, and Thompson. He also told the police where they had disposed of the weapons and other evidence.

The jury convicted Bolender of four counts of first-degree murder, four counts of kidnapping, and four counts of armed robbery. Neither the state nor Bolender presented any evidence at the sentencing hearing. After arguments by counsel, the jury recommended a sentence of life imprisonment. The judge did not accept the jury’s recommendation, but, rather, imposed the death sentence upon finding all but one of the statutory aggravating factors to apply. The court found nothing in mitigation.

Bolender alleges that the trial court erred in denying his petition for a writ of habeas corpus ad testificandum to secure the attendance of codefendant Paul Thompson as a witness at trial. He contends that there was no showing Thompson was incompetent to testify and that there was no effective exercise of Thompson’s privilege against self-incrimination.

A writ of habeas corpus ad testifi-candum is used to secure the attendance of an incarcerated witness at pretrial proceedings or at trial. State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 152 So. 207 (1933); Hodgins v. State, 139 Fla. 226, 190 So. 875 (1939). The issuance of the writ is in the discretion of the trial court, Moody v. State, 418 So.2d 989 (Fla.1982); Baker v. State, 47 So.2d 728 (Fla.1950), and in most instances its use has been superseded by statute. Section 914.001, Florida Statutes (1979), provides that witness subpoenas in criminal cases shall run throughout the state, and section 48.051, Florida Statutes (1979), specifically allows for service of process on state prisoners. Therefore, since habeas corpus is a highly prerogative writ, Frizzell v. State, 238 So.2d 67 (Fla.1970), petitions for habeas corpus ad testificandum, as other petitions for writs of habeas corpus, should not be granted when the relief sought can be obtained through other legal processes. State ex rel. Singleton v. Walters, 158 So.2d 513 (Fla.1963).

In the instant case, Bolender served Thompson with a witness subpoena at the facility where Thompson was incarcerated. Thompson’s attorney moved to quash the service on the grounds that Thompson had been adjudicated incompetent and a guardian had been appointed. Under section 48.-041, Florida Statutes (1979), his guardian should have been served. The court reserved ruling on that motion, but Bolender never sought to serve the proper party or enforce the original subpoena. At the hearing Thompson’s attorney also informed the court that his client would invoke his right to remain silent if called at trial.

On April 8, 1980 Bolender filed a motion to sever his trial from Thompson’s and to continue his trial until further proceedings on Thompson’s competency had been held. He attached to the motion a purported proffer of Thompson’s testimony in unsigned affidavit form. The form, prepared by Bolender’s attorney, simply stated that Bolender was not present at Macker’s house between 9:00 p.m., January 7,1980 and 3:00 a.m., January 8, 1980. The trial, court denied the motion and stated to defense counsel:

I have reviewed the motion that was filed and I recognize what you are trying to do.
I do not feel that it is an appropriate procedure for me to follow to either sever your client from this one or to continue the trial in this case.
As far as I know, Thompson was still incompetent at the time you had discussions with him.
Until such time as I get reports from psychiatric experts that would indicate that he had regained his competency, I have got to go by the presumption at that time, apparently, based upon the judge’s earlier order, he was, in fact, incompetent.
Your position is noted and I appreciate it, but I decline to agree.

Furthermore, the trial court noted that Bo-lender’s counsel had conceded that Thompson’s attorney had advised Thompson to invoke his privilege against self-incrimination.

On the day of trial Bolender filed a second motion to continue until an adjudication of Thompson’s competency to stand trial. The court also denied this motion. During the presentation of his case, Bolen-der moved the trial court to issue a writ of habeas corpus ad testificandum securing Thompson’s presence as a witness. The trial court denied the motion, stating:

We have been through this on at least three occasions previously, and you have brought before me on prior occasions the lawyer who represents Mr. Thompson who had indicated that his client would take the fifth amendment were he competent to testify.
He is still presently under an order signed by Judge Hoeveler that he is not competent and has never been found to be competent until this time.
I think that your order to bring him here for that purpose is moot, and I decline to sign it. We have discussed this on at least three occasions previously.

Defense counsel then stated:

Your Honor, I bring it up to the court because I want to be certain in case this trial should necessitate an appeal, I want the record to be absolutely clear my position is that the competence of Mr. Thompson to testify as a witness, even if it is at issue, I believe that Thompson, even if incompetent, can testify to what he saw or heard on the night of the occasion if he was in Mr. Macker’s home.
I believe that the testimony he would give would tend to exculpate Mr. Mack-er- — excuse me, Mr. Bolender from the crimes for which he is charged.
Consequently, I want to make the record absolutely clear I believe my client is denied his right to confrontation of witnesses.

The court replied:

You earlier provided me with the information you wished to call him and had honestly stated at that motion that you had been advised by Mr. Thompson’s counsel were he called, he would be advised not to answer based on his rights under the fifth amendment.
I recognize what you are trying to do today, and I abide by earlier rulings.

Given these facts we find no abuse of discretion by the trial court in denying the writ of habeas corpus ad testificandum. Bolender was on notice from the April 8 hearing that his original subpoena may have been defective, yet he failed to correct the improper service or file for the writ prior to trial. By waiting until the state had rested before seeking the writ, Bolen-der improperly sought to disrupt and delay the proceedings, and the court properly denied his motion.

Bolender also alleges that the trial court erred in refusing to permit a defense witness, Mrs. Claudia Merino, to be recalled to testify through an interpreter. The witness had no difficulty answering questions on direct examination, but became confused as to certain dates and times when cross-examined by the state. At that time the court indicated that if the Spanish-speaking woman wanted an interpreter one would be provided. She made no such request and was excused after redirect. The next morning defense counsel sought to recall Mrs. Merino to testify through an interpreter. The trial court denied the motion.

Generally, the decision to allow a witness to testify through an interpreter is within the sound discretion of the trial court. Watson v. State, 190 So.2d 161 (Fla.1966), cert. denied, 389 U.S. 960, 88 S.Ct. 339, 19 L.Ed.2d 369 (1967). In the instant case the witness had no problem on direct examination and only a limited problem on cross-examination. Defense counsel had full opportunity to clear up any misunderstandings on redirect and made no objection at that time to the absence of an interpreter. Under these facts the trial court did not abuse its discretion in denying the motion made after the witness had been excused.

Bolender’s final arguments are that the trial court erred in overriding the jury’s recommendation of life imprisonment and in basing its decision on aggravating circumstances which had no basis in the record or were nonstatutory aggravating circumstances. In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), we held that for a trial court to override an advisory sentence of life imprisonment by a jury “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Bolender contends that the jury’s recommendation was reasonable because the victims were armed cocaine dealers who may have been planning to rob the defendants, because Macker received a comparatively light sentence, and because only Macker testified as to who shot, stabbed, and killed the victims.

We have examined the record and arguments of counsel and do not agree with these contentions. That the victims were armed cocaine dealers does not justify a night of robbery, torture, kidnapping, and murder. Two of the victims were unarmed and present at the Macker residence because of a previous agreement with Bolen-der.

The disparity between Bolender’s death sentences and Macker’s twelve concurrent life sentences is supported by the facts. Bolender acted as the leader and organizer in these crimes and inflicted most of the torture leading to the victims’ deaths. Bo-lender used a hot knife to burn Nicomedes Hernandez on the back and inflicted slash wounds on two of the victims. -He also shot Hernandez in the leg in an effort to make him reveal the location of his cocaine and inflicted the stab wounds and gunshot wounds that led to the victims’ deaths. Macker’s role was less significant, and there is no evidence that he participated in the stabbing and shooting of the victims. Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Meeks v. State, 339 So.2d 186 (Fla.1976), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978). There was sufficient collaborating testimony regarding Bolen-der’s participation in these crimes. Based on the evidence and testimony at trial, we agree with the trial court that virtually no reasonable person could differ on the sentence.

The trial court found all but one aggravating circumstance to apply. We agree, however, that the court erred in applying two of the circumstances. Aggravating circumstance (5)(a) is not applicable because being on probation is not equivalent to being under a sentence of imprisonment at the time of the crime. Ferguson v. State, 417 So.2d 639 (Fla.1982); Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Bolender was on probation for two prior crimes. The trial court indicated, however, that although he considered this an aggravating circumstance he did not rely on it solely, basing his decision on all of the applicable factors.

Circumstance (5)(c), knowingly creating a great risk of death to many persons, is also inapposite. While other persons were at the Macker home during the course of the evening, Bolender never directed his actions toward any of the uninvolved people, and the means by which he inflicted the injuries, the gun, knife, and baseball bat, were not used to endanger the lives of those individuals. Lewis v. State, 398 So.2d 432 (Fla.1981); Williams v. State, 386 So.2d 538 (Fla.1980).

The court properly applied the remaining factors. The crimes were committed during the perpetration of a robbery and kidnapping and were committed for pecuniary gain. They were committed for the purpose of avoiding or preventing a lawful arrest and to disrupt or hinder the lawful exercise of law enforcement. John Merino was described as a police informant and was still alive when the defendants attempted to burn the vehicle. After committing the robbery, kidnapping, and torture, the defendants murdered the victims partially to prevent their retaliation but also to prevent arrest. Finally, these crimes were especially heinous, atrocious, and cruel and were committed in a cold, calculated, and premeditated manner. Bolender presented no testimony showing any mitigating circumstance, statutory or nonstatutory. In the absence of any mitigating circumstance disapproval of two aggravating factors does not require reversal of the death sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

Bolender’s convictions and sentences are affirmed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.

      . In the sentencing order the trial court indicated that a kilogram of cocaine was worth $65,000.

      . The court found the following circumstances listed in § 921.141(5) applicable: (a) the crime was committed by a person under sentence of imprisonment; (c) the defendant knowingly created a great risk of death to many persons; (d) and (f) the crime was committed during the perpetration of a robbery and kidnapping and was committed for pecuniary gain; (e) and (g) the crime was committed for the purpose of avoiding or preventing a lawful arrest and to disrupt or hinder the lawful exercise of law enforcement; (h) and (i) the crime was especially heinous, atrocious, and cruel and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

      . Thompson had previously been severed by the state because of his mental condition.

      . The trial judge based his presumption on a recent adjudication by a federal district court that Thompson was incompetent to stand trial.

      . § 921.141(5)(b).

      . The state’s deal with Macker was argued as mitigation; this has been discussed above.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    David BEREK, et al., Petitioners, v. METROPOLITAN DADE COUNTY, etc., et al., Respondents.
    No. 60713.
    Supreme Court of Florida.
    Nov. 24, 1982.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Rentz & Haggard, P.A., Miami, for petitioners.
    Robert A. Ginsburg, County Atty., and Robert L. Blake, Asst. County Atty., Dade County, Miami, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision in Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla. 3d DCA 1981). The decision expressly and directly conflicts with State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA), cert. denied, 364 So.2d 892 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner David Berek brought a successful tort action against Metropolitan Dade County, resulting in a jury verdict for $85,000. The trial court entered judgment for $50,000, the limit of liability fixed by the statutory waiver of sovereign immunity, section 768.28, Florida Statutes (1979). Petitioner then sought an order assessing costs and post-judgment interest. The trial court denied the motion. On appeal, the district court affirmed. The issue before us is whether the limits of recovery set forth in section 768.28(5) preclude the assessment of court costs and post-judgment interest. We approve the decision of the district court of appeal in result.

Section 768.28(5) provides:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be,paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974.

Petitioner argued to the district court that section 57.041, Florida Statutes (1979), a general statute providing for recovery of costs by the prevailing party, authorizes the assessment of costs in an action against the state or a subdivision. The district court rejected this contention saying, “Whatever rights of recovery against the state are given to a claimant must, in our view, affirmatively appear in the waiver of immunity statute and cannot be read into it.” 396 So.2d at 758.

The court also rejected the argument that the statute’s negation of pre-judgment interest indicates an intention to allow recovery of post-judgment interest beyond the maximum recovery of $50,000. “Accordingly, we construe the statute to declare that recovery of punitive damages or pre-judgment interest is always precluded, that is, even where the total recovery is less than $50,000; and that post-judgment interest and costs are recoverable, but only to the extent that the total of the judgment for damages and the post-judgment interest and costs does not exceed $50,000.” 396 So.2d at 759 (footnote omitted.)

While we approve the district court’s decision, we disagree with its statement that section 57.041, providing for recovery of costs, is completely inapplicable to tort claims against the state. Section 768.28 provides that the state “shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.” Therefore the general provisions of law which make costs and interest recoverable by the prevailing party are applicable when a tort claimant prevails against the state. The availability of interest is further indicated by the next immediately following language in the statute: “but liability shall not include punitive damages or interest for the period prior to judgment.” § 768.28(5), Fla.Stat. (1979). See §§ 55.03(1), 57.041, Fla.Stat. (1979); Roberts v. Askew, 260 So.2d 492 (Fla.1972); Simpson v. Merrill, 234 So.2d 350 (Fla.1970); Florida Livestock Board v. Gladden, 86 So.2d 812 (Fla.1956); Treadwell v. Terrell, 117 Fla. 838, 158 So. 512 (1935).

A waiver of sovereign immunity must be strictly construed. See Arnold v. Schumpert, 217 So.2d 116 (Fla.1968); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). The maximum amount of the state’s liability to any one claimant arising out of any one incident or occurrence, therefore, is $50,000, including damages, costs, and post-judgment interest. If the damages alone are less than $50,000, then costs and post-judgment interest are recoverable, but only up to the maximum liability of $50,000.

Respondent has raised a subsidiary issue pertaining to the principal amount upon which the post-judgment interest should be calculated, the $50,000 judgment or the $85,000 jury verdict. We conclude that post-judgment interest should be calculated upon the actual damages determined by the jury. If the damages are less than $50,000, then, of course, the post-judgment interest is recoverable from the state up to the $50,000 limit on total damages, costs, and interest. However, section 768.28(5) authorizes the rendition of judgment in excess of the maximum amount which the state can be required to pay. The purpose of this provision is so that the excess can be reported to the legislature and then paid in whole or in part by further act of the legislature. These provisions recognize that the judgment and post-judgment assessments to be entered of record should upon motion of the plaintiff be the full amount of actual damages suffered, costs, and post-judgment interest and not the amount of the defendant’s liability. Therefore the interest should be calculated upon the actual damages as reflected in the jury verdict.

The decision of the district court of appeal is approved in result.

It is so ordered.

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

ADKINS, J., dissents.

      . § 57.041, Fla.Stat. (1979):
      (1) The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

        (2) Costs may be collected by execution on the judgment or order assessing costs.

      . § 55.03(1), Fla.Stat. (1979):
      (1) All judgments and decrees bear interest at the rate of 6 percent a year, except that judgments or decrees rendered in circuit court shall bear interest at the rate of 8 percent a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation.

      . The limitations of $50,000 per claim and $100,000 per incident were changed to $100,000 and $200,000 respectively by chapter 81-317, Laws of Florida.


author: PER CURIAM.

text:
    A & E INTERNATIONAL ENTERPRISES, INC., a Florida corporation, Appellant, v. STAR CEILING AND FLOORS, INC., a Florida corporation, Appellee.
    No. 81-1346.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Arky, Freed, Stearns, Watson & Greer and Alan H. Fein, Miami, for appellant.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellee.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The grounds relied upon by the appellant for reversal have been considered in the light of the record, and briefs, and we find no reversible error has been shown. The record discloses that the case was fairly tried by the court and jury, that the verdict is supported by the evidence, and that the several rulings of the trial court challenged by appellant did not, on the record and the law, constitute harmful error.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    V.C., a juvenile, Petitioner, v. The Honorable Ralph B. FERGUSON, Jr., Judge of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida, Juvenile Division, Respondent.
    No. 82-323.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.

      Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for respondent.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

We have before us the juvenile’s petition seeking the issuance of a writ prohibiting further delinquency proceedings on the ground that he was entitled to discharge when not brought to trial within the time prescribed in Florida Rule of Juvenile Procedure 8.180. The State initially contends that review of the trial court’s denial of discharge must await the outcome of the case and be by direct appeal of a delinquency adjudication if one results. Thus, the State asks us to deny extraordinary relief without regard to the merits of the juvenile’s claim. We reject the State’s jurisdictional contention and, on the merits, grant the writ.

I.

The Fourth District Court of Appeal, in a spate of recent decisions, holds that prohibition does not lie to remedy a speedy trial rule violation. See Hunter v. Franza, 405 So.2d 1035 (Fla. 4th DCA 1981); Lowe v. Price, 405 So.2d 308 (Fla. 4th DCA 1981); Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981), review granted, No. 60,683 (Fla. January 21, 1982). In our view, these holdings, which stand alone, depart, contrary to the rule of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), from well entrenched Supreme Court authority. See State ex rel. Soodhalter v. Baker, 248 So.2d 468 (Fla.1971); Pena v. Schultz, 245 So.2d 49 (Fla.1971); Wincor v. Turner, 215 So.2d 3 (Fla.1968); Dickoff v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942); Woodward v. Petteway, 123 Fla. 892, 168 So. 806 (1935); Feger v. Fish, 106 Fla. 564, 143 So. 605 (1932). Even if it were arguable that the foregoing Supreme Court decisions are distinguishable and that, therefore, Hoffman v. Jones, supra, is no barrier to change, we are not persuaded that the distinctions made by the Fourth District in its seminal case of Sherrod v. Franza, supra, lead to the conclusion reached by that court that:

“[T]he preferable rule would seem to be that neither mandamus nor prohibition is an appropriate medium for review of a trial court’s order denying a motion for discharge based upon a violation of the speedy trial rule. Mandamus lies to compel the performance of a ministerial act. Its application in a speedy trial rule context assumes a lack of jurisdiction. Prohibition is the appropriate means for preventing a court from proceeding where it has no jurisdiction or where it seeks to act in excess of its jurisdiction. “While violation of an accused’s constitutional right to speedy trial may, under appropriate circumstances, divest the court of its jurisdiction, it seems clear that violation of the procedural rule is of an entirely different character. The accused may waive the strictures of the rule expressly or, by his actions, toll the running of the period. Such characteristics are suggestive of authority rather than power. It is power that is the essence of jurisdiction.” Id. at 1140.

First, the line between the constitutional speedy trial violation and the rule or statute violation is not as bright as Sherrod suggests. While it certainly may be said that the issuance of the writ of prohibition in Pena v. Schultz, supra, was in respect to a purely constitutional claim that the right to a speedy trial had been denied, the same cannot be said of the writs issuing in Win-cor, Dickoff and Feger. In each of the latter cases, the defendant-petitioner, having complied with then applicable speedy trial statutes by filing demands for trial in each of the prescribed number of successive terms of court, sought discharge after not having been brought to trial as the statute required during the last of those terms. Admittedly, the cases advert to a denial of the petitioners’ constitutional rights, but they do so only in the sense that the statute involved was designed to effectuate or insure the constitutional right, see Wincor v. Turner, supra; was a legislative determination of the maximum delay which would be tolerated under the Constitution, see Feger v. Fish, supra; or was a manner of safeguarding the constitutional right, see Dickoff v. Dewell, supra. See also Turner v. Olliff, 281 So.2d 384 (Fla. 1st DCA 1973), and State ex rel. Reynolds v. Willis, 255 So.2d 287 (Fla. 1st DCA 1971) (both noting that speedy trial rule represents enlightened effort to implement constitutionally guaranteed right to a speedy trial). Thus, extraordinary relief was accorded in each of these cases because the speedy trial statute, “declaratory of the rights guaranteed under the constitutional provisions,” see State ex rel. Curley v. McGeachy, 149 Fla. 633, 641, 6 So.2d 823, 827 (1942), had been violated. Since speedy trial rules are, in like manner, merely declaratory of the underlying constitutional right to a speedy trial, it would appear that when a defendant asserts his right to discharge because of a rule violation, under the authority of Wincor, Dickoff and Feger, the constitutional right to a speedy trial is implicated, and a defendant would be entitled to extraordinary relief to enforce that right.

Sherrod insists, however, that Wincor, et a 1. are cases involving the assertion of a constitutional right and are thus distinguishable from a rule case. While, in our view, the distinction is contrived, since clearly no constitutional claim independent of the statute was made in those cases, it may be, nevertheless, that any continued reliance on Wincor, Dickoff and Feger is unjustified in light of State ex rel. Soodhalter v. Baker, supra. In Soodhalter, the Supreme Court addressed its jurisdiction to entertain petitions for writs of prohibition involving claims of speedy trial denial:

“Prior to the 1956 Florida constitutional revision this Court could have entertained the grant of an original writ of prohibition in this case, through language of Article V, Section 5, then reading: ‘The court shall have power to issue writs of mandamus, certiorari; prohibition, quo warranto, habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.’ (Emphasis added). See Feger v. Fish, [supra].
“The 1956 Article V revision, however, created a fundamental change in the Court’s constitutional power to accept an original writ of prohibition through Section 4(2), thereof, not stating: ‘The supreme court may issue * * * writs of prohibition to * * * the trial courts when questions are involved upon which a direct appeal to the supreme court is allowed as a matter of right.’ Subsequent to this revision, this Court has entertained original writs of prohibition in speedy trial cases only where it was asserted that a constitutional right to speedy trial, independent of rights under [§ 915.01, Fla.Stat. (1970) ] was violated. See Pena v. Schultz, 245 So.2d 49 (Fla.1971); Loy v. Grayson, 99 So.2d 555 (Fla.1957). Inasmuch as relator in the instant case asserts only a statutory right to speedy trial, this Court is without jurisdiction to entertain her suggestion.” Id. at 470.

The significance of Soodhalter to the present case lies not in its holding that the Supreme Court’s post-1956 constitutional authority to issue a writ of prohibition in respect to speedy trial claims is limited to cases involving independent constitutional claims. Instead, its significance is the holding that there is no similar jurisdictional impediment in the district courts of appeal, and that in those courts prohibition is the proper remedy for asserted speedy trial rule violations.

Thus, unconvinced by Sherrod, we are unable and see no reason to depart from the well-established, long-standing and widespread decisions which have prohibited trial courts from putting a defendant on trial after a speedy trial violation has occurred. See, e.g., Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981); Ballard v. Kaney, 397 So.2d 1042 (Fla. 5th DCA 1981); Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981); In the Interest of M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978); State ex rel. Mullen v. Swigert, 352 So.2d 962 (Fla. 1st DCA 1977); State ex rel. Mitchell v. Beverly, 352 So.2d 535 (Fla. 1st DCA 1977); State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977); Canup v. Langston, 341 So.2d 1069 (Fla. 2d DCA 1977); Schuty v. State, 281 So.2d 507 (Fla. 1st DCA 1973); Turner v. Olliff, supra; State ex rel. Reynolds v. Willis, supra.

It is much too late in the day to analogize rulings on speedy trial violations to other rulings which might dispose of a case before trial and to suggest that since we have not traditionally granted extraordinary review of the latter, we should now stop granting extraordinary review of the former. See Bates v. Keating, supra (Co-wart, J., dissenting). In this state, speedy trial violations have historically been accorded review by prohibition and mandamus, not simply because immediate review might be dispositive of the case, but because of the underlying constitutional right involved. This very same history of according extraordinary relief convinces us that the omission in the Florida Rules of Appellate Procedure of a provision for an interlocutory appeal by the defendant from an order denying a motion for discharge on speedy trial grounds does not demonstrate, as has been suggested, that review was therefore not intended, see Bates v. Keating, supra (Cowart, J., dissenting), but instead recognizes that entitlement to review by prohibition and mandamus is otherwise well settled. See State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982).

We are, moreover, not persuaded that were we addressing for the first time the question of the availability of pretrial extraordinary relief for one claiming a violation of speedy trial rights that we would follow Sherrod. Its thesis is that because there is a “plethora of petitions that these days inundate the appellate courts,” review of an alleged speedy trial rule violation should await the outcome of the case. While there may be justification for the position that review of a purely constitutional claim that a speedy trial has been denied, involving, as it often does, an evaluation of the extent of the prejudice to the defendant caused by the delay, see Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), should await the outcome of the trial, see United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), there is no similar justification for postponing decision on the simple and straightforward issues of whether the defendant was brought to trial within the time prescribed by the rule and was available for trial, neither of which issues involves the question of actual prejudice.

II.

We turn now to the merits of the case. On July 18, 1980, the juvenile was arrested on a charge of burglary. On August 27, 1980, the State filed a petition for delinquency, charging him with burglary and grand theft. On September 4, 1980, the State attempted to serve the juvenile with a summons to appear in court on September 10,1980. The summons was directed to the juvenile at 16390 Southwest 218th Avenue, Miami, Florida, the address listed as his residence address on the arrest affidavit. The summons was returned unserved with the notation “no longer at this add[ress] as per owner.”

The State made no further attempts to locate the juvenile, notwithstanding that a local business address was also listed on the arrest affidavit. A pick-up order was issued on September 10, 1980, when the juvenile failed to appear for sounding. The speedy trial period expired on October 16, 1980.

More than a year later, on November 13, 1981, the juvenile appeared for sounding. The pick-up order was quashed, the Public Defender was appointed to represent the juvenile, and a plea of denial was entered on the juvenile’s behalf. An adjudicatory hearing was scheduled for December 7, 1981.

On December 7, 1981, the juvenile moved for discharge alleging a violation of his speedy trial rights under Florida Rule of Juvenile Procedure 8.180(a). The record, without dispute, reflects that (a) the juvenile had been permanently committed to the Department of Health and Rehabilitative Services (HRS) since 1973, and that the address where service was attempted on September 4, 1980, was a State operated foster home; (b) no effort was made to locate the juvenile through HRS, and no attempt to serve the juvenile at the business address listed on the arrest affidavit was ever made; (c) the juvenile never had notice of any sort of the September 10, 1980, hearing.

At a hearing on the motion for discharge, the State conceded:

“At this point in time, the State would cede [sic] that perhaps the pick-up Order was erroneously issued in this case. The fact that the child was in custody, albeit, for a — a dependency purpose, as opposed to a delinquency purpose, that HRS could have, perhaps utilized some more diligence, in this case, and tried to find where the child was located in another foster home. But, at this point in time, State would argue to the Court that even if the pick-up Order was issued erroneously, the speedy trial period should be tolled, or extended, in this particular case, in the interest of justice.”

Over the juvenile’s objection, the court extended the speedy trial period to January 6, 1982, denied the motion for discharge, and granted a stay of proceedings in the trial court to allow the juvenile to seek relief here.

A juvenile charged with an offense in the State of Florida has a right to be brought to trial within ninety days of his arrest. Fla.R.Juv.P. 8.180. Where the State fails in its duty to bring a juvenile to trial within the prescribed time, the juvenile is entitled to discharge. G.S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980); In the Interest of R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980). Since it is clear that the juvenile failed to appear at the sounding on September 10, 1980, but never received notice of that court hearing, his right to discharge turns on the question of whether he or the State was responsible for his non-appearance. C.S. v. State, supra, at 458; In the Interest of R.L.P. v. Korda, supra, at 1330.

Where, as here, the juvenile’s unavailability for trial is relied upon to defeat his motion for discharge, the State has the burden of going forward with evidence to show that unavailability. State ex rel. Smith v. Nesbitt, supra. In the present case, that burden was not satisfied. There were at least two possible and readily available ways for the State to locate and notify the juvenile after the single unsuccessful attempted service on September 4, 1980. First, the arrest affidavit contained a second and complete address for the juvenile at his place of employment. No service was attempted there. Second, as counsel for the State conceded below, the State could have simply contacted HRS in order to ascertain the juvenile’s new residence. This, too, was not done. In short, the record demonstrates that the State failed to use even minimal diligence in carrying out its obligation to inform the juvenile of the date of his sounding.

In Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977), the defendant was arrested by the City of Orlando police and released. At that time, he gave the police his parents’ Alabama address where he often stayed, as well as the address of his place of employment in Tampa, Florida. After an indictment was returned, the Orange County Sheriff’s Office forwarded to the sheriff’s office in Alabama a capias to take the defendant into custody. They received no response and at no time checked with the City of Orlando police for any further information as to Thigpen’s possible whereabouts. In short, “no other effort to locate the defendant was made.” Id. at 1079 (emphasis supplied). Well after the expiration of the speedy trial period, the defendant was taken into custody. In reversing the denial of the defendant’s motion for discharge, the Fourth District held:

“While [the adult speedy trial rule] does not require the State to make exhaustive efforts to locate an accused in order to establish some evidence of non-availability, the Rule does require of the State something more than just sending a warrant to out-of-state authorities without a follow-up.” Id. at 1080 (citations omitted).

Similarly, more than the token effort to notify the juvenile which occurred in the present case is required. Compare, e.g., Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980); State ex rel. Green v. Patterson, 279 So.2d 362 (Fla. 2d DCA 1973).

Finally, neither the State’s motion to extend the speedy trial period nor the trial court’s order thereon complied in any respect with Florida Rule of Juvenile Procedure 8.180(d). See C.S. v. State, supra; Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980); In the Interest of R.L.P. v. Korda, supra; State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977).

The writ of prohibition is issued, and the trial court is directed to discharge the petitioner.

      .Wincor and Dickoff proceeded under Section 915.01(2), Florida Statutes, which required written demands in three successive terms and called for discharge if trial was not held before the third full term. Feger alleged he was entitled to discharge under Section 8362, Compiled General Laws (1927), and Section 6057, Revised General Statutes (1920), the provisions of which were similar to Section 915.01(2).

      . Moreover, that the defendant is pursuing a right granted under a rule or statute should not affect his entitlement to relief. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Herring v. State, 411 So.2d 966, 970 n. 11 (Fla. 3d DCA 1982).

      . Soodhalter is not referred to in the Sherrod opinion.

      . Dickoff, not mentioned in Soodhalter, was decided before 1956 and under Soodhalter would have been, as Feger, correctly decided. Wincor was decided in 1968 and was not discussed in Soodhalter. Wincor, however, is a mandamus case, and the Soodhalter holding is inapplicable to mandamus. See State ex rel. Atwood v. Baker, 250 So.2d 869 (Fla.1971). In Atwood, the State, relying on Soodhalter, contended that the Supreme Court had no jurisdiction to issue a writ of mandamus to remedy a statutory speedy trial violation. The court stated:
      “The State urges that this cause also be transferred, even though here on mandamus. In making this suggestion, the State overlooks the fact that prohibition is set apart from other extraordinary writs in the Constitution by the requirement that a direct appeal be involved as a matter of right. Thus, while mandamus is appropriate where a state official is named as respondent, prohibition is appropriate where we would entertain an appeal as a matter of right. The Soodhalter case was transferred because it came on prohibition when the underlying constitutional requirement for that avenue of jurisdiction was not satisfied.” 250 So.2d at 870 (footnote omitted).
      Thus, Atwood reaffirms the proposition that, in any event and in any court, mandamus lies to remedy a speedy trial violation. This proposition is totally overlooked in Sherrod.

      .If we were to base our decision on considerations of judicial economy, the stronger argument is that that interest would be better served by avoiding an unnecessary trial.

      . The record does not reflect what precipitated this court appearance.

      . See In re Camm, 294 So.2d 318 (Fla.1974).


author: BOARDMAN, Acting Chief Judge.

text:
    Barton RAMPIL, Appellant, v. STATE of Florida, Appellee, and Arthur SHERRY, Appellant, v. STATE of Florida, Appellee, and Edward GONZALEZ, Appellant, v. STATE of Florida, Appellee, and Salvatore COMPARATO, Appellant, v. STATE of Florida, Appellee, and Roger J. SUDERS, Appellant, v. STATE of Florida, Appellee, and Angelo L. ORTIZ, Appellant, v. STATE of Florida, Appellee, and Margarita GONZALEZ, Appellant, v. STATE of Florida, Appellee, and Moises Raymond GONZALEZ, Appellant, v. STATE of Florida, Appellee, and Myrra CARRASCO, Appellant, v. STATE of Florida, Appellee, and Myrra CARRASCO, Appellant, v. STATE of Florida, Appellee.

      Nos. 81-365, 81-366, 81-408 to 81-414, 81-418, 81-606, 81-879, 81-1015 to 81-1022, 81-1229 and 81-1230.
    District Court of Appeal of Florida, Second District.
    May 19, 1982.
    Rehearing Denied June 30, 1982.
    Anthony S. Battaglia and Aubrey O. Dicus, Jr. of Battaglia, Ross, Hastings, Dicus & Campbell, St. Petersburg, for appellants Edward Gonzalez, Margarita Gonzalez, Moisés Raymond Gonzalez and Myrra Car-rasco.
    Franklyn Louderback of Louderback & McCoun, St. Petersburg, for appellants Arthur Sherry and Barton Rampil.
    No appearance for appellants Salvatore Comparato, Roger J. Suders and Angelo L. Ortiz.
    Jim Smith, Atty. Gen., Tallahassee and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

We affirm the judgments and sentences on each and every count against each appellant, all of the issues raised by appellants being without merit.

Only one subissue merits discussion. Appellants challenge the validity of a wiretap on the telephone of three of appellants on several grounds, one of which is that the St. Petersburg police, who conducted the wiretap, were acting beyond their jurisdiction, since the tap was operated in Largo.

However, the lead investigative officer involved, St. Petersburg Detective Martin, testified without contradiction that he was also a deputy sheriff. We hold that, this being the case, Martin was not outside his jurisdiction in conducting the wiretap.

Appellants argue, however, that if Detective Martin was acting as both a St. Petersburg police officer and a deputy sheriff, he was in violation of Article II, Section 5(a), Florida Constitution (1968), which prohibits dual office holding. It is true that the term “office” as used in article II, section 5(a), see State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508 (Fla.1919), has been applied to both municipal police officers, Curry v. Hammond, 154 Fla. 63,16 So.2d 523 (Fla.1944), and deputy sheriffs, Blackburn v. Brorein, 70 So.2d 293 (Fla.1945); Johnson v. Wilson, 336 So.2d 651 (Fla. 1st DCA 1976). Nevertheless, we conclude that the “dual office holding” here is permissible under Vinales v. State, 394 So.2d 993 (Fla.1981). There the issue involved Miami police officers who received temporary unpaid appointments as state attorney investigators, and our supreme court relied on both the temporary nature of the investigator appointments and the fact that these latter positions were unpaid to support its holding that it was not improper for a person to hold both positions. Here the dual appointment was apparently not tern-porary. This distinction notwithstanding, we believe that inasmuch as Martin was not paid for acting in the capacity of a deputy sheriff, he was not in violation of Article II, Section 5(a) of the Florida Constitution.

Accordingly, appellants’ judgments and sentences are AFFIRMED.

OTT and DANAHY, JJ., concur.


text:
    Nelson NICOLETTO, Appellant, v. Betty NICOLETTO, Appellee.
    No. 81-49.
    District Court of Appeal of Florida, Second District.
    June 2, 1982.
    Rehearing Denied July 1, 1982.
    Robert H. Carlton, Tampa, for appellant.
    Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

HOBSON, A.C.J., and BOARDMAN and GRIMES, JJ., concur.


text:
    Donata OCCHIPINTI and John Occhipinti, Appellants, v. METROPOLITAN DADE COUNTY and Bernard Robinson, Appellees.
    No. 81-1131.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Aug. 4, 1982.
    Grover, Ciment, Weinstein & Stauber and Marvin Weinstein, Miami Beach, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Striekroot and Fred R. Ober, Miami, for appellees.
    Before BARKDULL and BASKIN, JJ., and PEARSON, TILLMAN, (Ret.) Associate Judge.
   PER CURIAM.

Affirmed.


text:
    FLORIDA HIGH SCHOOL ACTIVITIES ASSOCIATION, INC., a non-profit corporation, Appellant, v. Katherine STEWART, Dr. E.J. Arahill, as principal of Miami Sunset High School and as agent of Florida High School Activities Association, Inc., Appellees.
    No. 82-274.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.

      Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, Walton, Lantaff, Schroeder & Carson and John Patrick Joy, West Palm Beach, for appellant.
    Katherine Stewart, in pro. per.
    du Fresne & du Fresne, and Sarah Lea Tobocman, Miami, for appellees.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed.


author: PER CURIAM. PER CURIAM. PER CURIAM. MILLS, Judge,

text:
    REGENCY INN, Aetna Casualty & Surety Company, Appellants, v. Linda Faye JOHNSON, Appellee.
    No. AE-354.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    On Rehearing En Banc Sept. 23, 1982.
    Rehearing Denied Dec. 1, 1982.

      Margaret E. Sojourner, of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.
    Clifton L. Howell, Jr., Winter Haven, for appellee.
    Michael R. Miller and John-Edward Alley, Tampa, for Alley & Alley, Chartered.
    H. George Kagan, Miller, Hodges & Ka-gan, Miami, for Risk Management Services, Inc.
    Michael A. Edwards, Quincy, for U.S. Sugar Corp.
    L. Kathleen Horton, Clark, Partington, Hart, Hart, & Johnson, Pensacola, for City of Pensacola.
    Richard A. Kupfer, Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for Academy of Florida Trial Lawyers.
    Mary Ann Stiles, Stiles & Livingston, Tampa, for Associated Industries of Florida, Inc.
    James N. McConnaughhay and Arthur C. Beal, Jr., Tallahassee, for Ins. Co. of North America.
    Mygnon C. Evans, Temple Terrace, for Florida Citrus Mut.
    Bernard J. Zimmerman and Michael M. O’Brien, Akerman, Senterfitt & Eidson, Orlando, for American States Ins., Denny’s Restaurant/Seif-Insured Services by Scott Wetzel, Iowa Nat. Ins., Nat. Services Industries, Inc., Sentry Ins. Companies and Sun Bank, N.A.
    Heskin A. Whittaker and B.C. Pyle of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for Florida Self-Insurers’ Fund of Associated Industries of Florida.
    Ronald W. Brooks, Brooks, Callahan & Phillips, Tallahassee, for South Central Educational Risk Management Program.
    Frederick B. Karl and S. James Brainerd, Tallahassee, for Florida Ass’n of Ins. Agents. Dan F. Turnbull, Jr., Asst. Gen. Counsel, Florida Dept, of Labor and Employment Sec., Tallahassee, for Dept, of Labor and Employment Sec., Div. of Workers’ Compensation.
    Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castor, P.A., Miami, for Florida AFL-CIO.
    L. Barry Keyfetz, of Keyfetz, Poses & Halpern, Miami, for L. Barry Keyfetz.
    Andrew A. Graham and Marjorie E. Smith, Reinman, Harrell, Silberhorn, Moule, Boyd & Graham, Melbourne, for Harris Corp.
    Jonathan L. Alpert, Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for Florida Farm Bureau Mut. Ins. Co.

      Richard G. Davis, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Hillsborough County Hosp. Authority.
    Charles E. Bentley and C. Kenneth Stuart, Jr., Holland & Knight, Bartow, for Agrico Min. Co., Cardnia Claims Service, Inc., Intern. Minerals and Chemical Corp., CTD Corp., St. Regis Paper Co., Tampa Elec. Co., Underwriters Adjusting Co., and USS Agri-Chemicals.
   PER CURIAM.

This workers’ compensation appeal presents again a challenge to the sufficiency of work search evidence in support of an award of wage loss benefits. We affirm the order finding that claimant met her obligation under the statute, which provides “the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.” (e.s.) § 440.15(S)(b)2, Florida Statutes.

The facts detailed below permit a conclusion that claimant would not have suffered the wage loss in question if her compensable injury had not occurred. We therefore find the statutory requirement of causal connection is met, even assuming, as appellant argues, that claimant did not prove directly that jobs were available which she could not get because of her physical limitations. The appellant employer/carrier relies upon LeHigh Corporation v. Byrd, and other recent decisions based on the stated rule that a work search which is unsuccessful due to unavailability of work precludes compensation because such evidence does not prove a loss due to com-pensable disability. Although we do not intend to disagree with the results reached in all of those prior cases (which may involve facts or distinguishing statutory standards otherwise substantiating the decisions reached), we do recognize that their stated rationale conflicts with our construction and application of the statutory language first above quoted in the present case. For the purpose of wage loss entitlement we now conclude the LeHigh rule is inapplicable, and find no necessity in this case for discussion of its merit in the context of compensation for total disability, permanent or temporary.

Claimant was injured on August 25,1979, during the course and scope of her duties as a maid at the Regency Inn. Prior to her accident, the claimant suffered from a preexisting injury to the pelvic area which caused a deformed left leg. The deputy accepted claimant’s testimony that she had not been limited by her prior condition except for limping, and that she had always been able to carry out her occupational duties without pain, discomfort or limitation. The record indicates that the appellee sustained a 25% impairment, 5% of which was attributable to the industrial accident.

Claimant was paid $72.50 temporary total disability benefits from August 26, 1979, through December 2, 1979, and from January 3, 1980, through August 4, 1980. Johnson subsequently filed a claim for 100% wage loss benefits for the period beginning August 4, 1980, through the December 10 hearing. The deputy commissioner denied this claim by order of April 24, 1981, based on absence of work search. On May 11, 1981, a hearing was held to decide a claim for wage loss benefits for the period December 10, 1980, through April 10, 1981. The deputy commissioner determined that Johnson had made a good faith effort to obtain employment and that she had been unsuccessful in obtaining employment. The claimant had a limited employment history, having worked only in domestic or related labor. Her treating physician indicated that, as a result of the injury, appellee had to seek lighter employment. Claimant had made a job search during the controverted time at the following places:

1. Florida State Employment Office (January 14,15, 20, March 15, 20, 28);
2. Eckerd Drug Store (March 14,18, 20);
3. Exchange Bank of Polk County (March 10, 15);
4. First Federal Savings.

The record also contains a list showing additional places of employment at which appel-lee sought a job.

On June 5,1981, the deputy commissioner entered an order awarding the claimant 100% wage loss benefits for the period from December 10, 1980, through April 10, 1981. The employer then filed this timely appeal, raising only the question of whether there was sufficient evidence to sustain the deputy commissioner’s order requiring payment of wage loss benefits to the claimant.

Based on claimant’s testimony that prospective employers stated “they wasn’t hiring,” appellant contends claimant’s work search was necessarily inadequate and “her inability to obtain work was due to unavailability of work rather than Johnson’s injury.” (e.s.) The record, however, does not indicate any lack of diligence or good faith such as might conceivably result from an extremely restricted or illogical search. We conclude accordingly that the deputy properly applied those tests within the parameters for work search recently restated in Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981).

We believe that the reasoning and authorities set forth in the dissenting opinion in Lake County Commissioners v. Wal-burn, 409 So.2d 153 (Fla. 1st DCA 1982), are dispositive of the issue presented in this case. We also note that the statutory language on wage loss, supra, stands in contrast to that which governs a claimant’s burden in establishing permanent total disability, i.e., “the burden shall be upon the employee to establish that he is not able uninterruptedly to ... work due to physical limitations,” and no compensation of that character shall be payable “if the employee ... is physically capable of . .. gainful employment.” § 440.15(l)(b), Florida Statutes. Since the LeHigh rule would effectively limit compensable wage loss to that which results from physical incapacity (as opposed to economic incapacity caused by «job disruption accompanying industrial injury), the application of that rule to wage loss would disregard the apparent intent of the legislative standards on causal relation which are framed so distinctly for the two classes of benefits. For wage loss the statute provides simply for general causal relation by covering any such loss which “is the result of the . .. injury.” If the intent had been to require wage loss from physical incapacity for work (independent of job availability) as an absolute condition to. compensation for wage loss, the alternative language would surely have been used. The definition of disability in the act also utilizes a general causal relation concept by referring simply to “incapacity because of the injury to earn .. .,” and not to incapacity from physical limitations of the injury. Certainly nothing in the statutory framework for wage loss awards evinces an intent to abandon that element of the well settled standard for capacity to earn which takes into account “[ijnability to obtain work of a type which claimant can perform in light of his after-injury condition,” Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971).

We find, accordingly, that the rule stated in LeHigh and its progeny should not govern the evaluation of work search standards for wage loss, and the award by the deputy in this case is therefore affirmed.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.

OPINION ON REHEARING EN BANC

PER CURIAM.

The court of its own motion voted to consider, en banc, the panel’s decision in this case. Additional briefs by the parties were requested, submissions by amici curiae were invited, and oral argument was scheduled and heard. The court commends counsel for the parties and those appearing for amici curiae on both sides for the professional and capable manner in which they have responded to the court’s request for assistance in resolving the issues in this case. Upon consideration of the briefs and argument, and after further deliberations, a majority of the judges (all of whom participated in the en banc proceeding) voted to uphold the panel’s decision, for reasons set forth in the original opinion and further reasons stated below.

The precise issue that has evolved from the many briefs and arguments heard is the effect of economic conditions on the employee’s entitlement to wage loss benefits. Preliminarily, we observe that the workers’ compensation act has consistently placed on the employee the burden to establish entitlement to compensation, whether it be for temporary partial or total disability, permanent partial or total disability, or loss based upon diminution of wage earning capacity. There is nothing unique, therefore, in the present provision placing the burden on the employee “to establish that any wage loss claimed is the result of the com-pensable injury.” Section 440.15(3)(b)2.

We also preliminarily note the obvious fact that economic conditions are not likely to have a controlling effect on the employee’s entitlement to temporary total or permanent total disability under subsections (1) and (2), Section 440.15, of the 1979 act. Just as obvious is the fact that economic conditions in general, or in a particular locale, or with respect to particular segments of the economy, can have a significant effect on the ability of an injured but recovering employee, or a permanently impaired employee, to become reemployed. Significantly, it was not until the 1979 adoption of the wage loss method of compensating workers permanently impaired by industrial accidents that the effect of economic conditions on the employee’s ability to secure other employment assumed critical importance. Prior to the amendments, an impaired worker was compensated based upon a formula which took into account the observed economic effect of the injuries sustained. Mims And Thomas Manufacturing Co. v. Ferguson, 340 So.2d 920 (Fla.1976). No contention is made here that the limited “impairment benefits,” Section 440.15(3)(a), are intended to serve the same purpose as the “scheduled benefits” under the old law. Under prior law, it was only when the employee sought enhanced benefits, based upon a showing that his economic loss for an unscheduled injury exceeded the compensation payable for his percentage of anatomical impairment, that conditions of the labor market affecting his employability became particularly relevant. In other words, the pre-1979 permanently impaired claimant was entitled to basic benefits which took into account his projected economic loss, regardless of whether he sought or obtained after-injury employment. Not so under wage loss, because under that concept, the employee is compensated for his or her actual, demonstrable loss. Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982).

Whether the nonavailability of jobs due to economic conditions is a factor to be considered or ignored in determining the after-injury wages an employee is “able to earn,” (Section 440.15(3)(b)2.), is not immediately apparent from a literal reading of the statute itself. The words “able to earn” do not convey a meaning so clear and so precise, standing alone, that they necessarily command an interpretation favoring the position of the employer and carrier, or that of the employee. In the broadest sense, “able to earn” takes into account many factors, including the availability of jobs, and such a broad interpretation is consistent with prior case law, and with the principle which requires a liberal construction in favor of the injured employee.

A broad interpretation is also consistent with the entire text of subparagraph 2., in that, although the words “able to earn” are not generally defined, they are qualified and limited by the remaining language of the subparagraph. Thus, as the statute is read it is seen that the amount the employee is “able to earn” shall not be less than “the sum actually being earned,” including sheltered employment. Further, if the em-

ployee “voluntarily limits” his income, or “fails to accept employment commensurate with his [or her] abilities,” the amount the employee is “able to earn” shall be deemed the amount “which would have been earned” absent limitation of or failure to accept appropriate employment. Had the legislature intended “able to earn” to be further qualified so as to preclude consideration of non-availability of jobs because of economic conditions, it would have been a simple matter for this to have been written into the law. The fact that qualifications and limitations were expressed, as just mentioned, and the one we are requested by the employer/carrier to provide by judicial interpretation was omitted, lends support to the view that no such qualification was intended.

The employer/carrier argue, however, that the final sentence of subpara-graph 2. manifests a legislative intent to preclude consideration of economic conditions. That sentence reads: “Whenever a wage-loss benefit as set forth in subpara-graph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the com-pensable injury.” (emphasis supplied) The employer/carrier urge that if, as contended by the employee, and as determined by the original panel which decided this case, the burden of proving a causal relation between the industrial accident and the wage loss could be satisfied by proving “economic dislocation” or “job disruption” by reason of the compensable injury (422 So.2d 873), the legislature surely would have written it that way by using the word “accident,” instead of “injury,” so that the final sentence of subparagraph 2. would read, in pertinent part: “... the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable accident.” While this argument has some superficial appeal, we do not believe the choice of words in this particular sentence holds the key to this issue. It is observed in this connection that it is not the “accident” that is compensable, but instead is the “injury” from the accident, albeit it is not the injury alone, but actually the temporary or permanent impairment from the injury that establishes the eligibility of the employee to claim wage loss benefits. Furthermore, we think a more plausible and reasonable interpretation of the burden of proof provision is found by relating it to the requirement of showing a causal relation between the injury and a change in employment status, and to the specific qualifications and limitations on wage loss entitlement mentioned in the statute. That is to say, the burden of proof provision is to require the employee to go forward with evidence showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie, an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities. Once this evidence has been presented by the employee, the burden of proving that the employee has refused work or voluntarily limited his or her income is on the employer. Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971, 972 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, supra, (footnote 2, this opinion).

The various arguments focusing on the wording of the statutes fail to provide a convincing “technical” solution to the issue at hand. Other (and perhaps more fundamental) considerations lend support to the original panel’s decision which rejects the notion, urged by the employer/carrier, that unavailability of jobs due to economic conditions precludes recovery of wage loss benefits. As pointed out by the dissenting opinion in Walburn, 409 So.2d 153, 155, adopted by the majority in Regency, a permanently impaired employee is “unable to test the limits of his capacity to work” if his inability to obtain work is due to the unavailability of jobs. Adherence to the view espoused by the employer/carrier would place the impaired but unemployed worker in somewhat of a dilemma, because he would be effectively deprived of benefits— which the act purports to bestow upon permanently impaired workers- — for reasons which bear no relation to his impaired, after-injury physical condition, nor to his or her own good faith efforts to become reemployed. Furthermore, the employer/carrier’s view is fundamentally flawed by its failure to take into account the aspect of “certainty” of recovery which is said to contribute to the constitutional validity of the worker’s compensation system. Acton v. Fort Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982), 7 FLW 1699, (opinion filed August 11, 1982).

Our review has convinced us that by adopting the wage loss concept, the legislature by necessary implication adopted the “work search” test as the means for determining the employee’s post-injury capacity to .earn. As recently pointed out in Flesche v. Interstate Warehouse, 411 So.2d 919, 922 (Fla. 1st DCA 1982), the “so-called ‘work search’ test is merely the evidentiary vehicle by which employability, or lack of it, is proven.” It was not until this court’s Lehigh and Walburn decisions, which postdated the wage loss statute, that the evi-dentiary requirements of a good faith work search were considered to require proof that inability to find employment was not due to unavailability of jobs because of economic conditions or otherwise. In fact, the unavailability of jobs has been viewed as evidence supporting recovery for a loss of wage earning capacity, rather than as defeating it. See, United States Sugar Corporation v. Hayes, 407 So.2d 1079 (Fla. 1st DCA 1982). Although as pointed out in the Flesche opinion, no precise definition of an “adequate job search” can be devised, the general evidentiary parameters of work search evidence were expanded by Lehigh and Walburn beyond what should be realistically required, as indicated by prior decisions. For example, in Milex Southern Medical, Inc. v. Osuna, Industrial Relations Commission Order 2-3763 (1979), cert.den. 383 So.2d 1200 (Fla.1980), the Commission indicated that such evidence should include the names of the businesses contacted, the type of work sought, the number of contacts made, and the time frame within which work was sought. There are, of course, an infinite number of facts and circumstances which may bear upon the adequacy or good faith of a work search, but the mere articulation of some work search deficiency under the facts of a particular case does not convert that element into an essential evidentiary requirement to be met by affirmative proof in every case. For example, in Lehigh, where it appeared that the employee remained unemployed for reasons other than because of his disability, his work search evidence was held inadequate. This does not mean, however, as pointed out in Florida Mining and Minerals v. Brantley, 418 So.2d 352 (Fla. 1st DCA 1982), that direct proof by the employee that he has been rejected for a job because of his disability is required as an essential evidentia-ry element in proving wage loss. Finally, with respect to the Lehigh and Walburn decisions, we refer to that portion of the Regency opinion (Regency, footnote 1), which points out the distinguishing features of the cases cited as authority in the two opinions, without repeating that discussion here.

Turning to another point, that is, the perceived effects of the panel’s decision, the employer/carrier and amici curiae supporting their position are virtually unanimous in contending that the decision converts workers’ compensation, in times of economic recession, into unemployment benefits. After careful consideration, we are unable to agree. First, the 1979 act itself contains no indication that the legislature, in that year, devised and enacted a system of reparations for injured workers that would fulfill its purposes in time of relative economic prosperity, but would automatically withhold or suspend such reparations in time of economic depression. Secondly, unemployed workers (candidates for unemployment compensation) do not suffer compensable industrial accidents; only employed workers do. The employed worker is an integral part of the productive machinery of society and he is entitled to be treated as still belonging to that segment of the economy after a com-pensable accident, rather than categorized as a member of the unfortunate group whose unemployed status is due solely to economic conditions. To regard a workers’ compensation claimant otherwise would represent a drastic departure from the long-accepted doctrine that the workers’ compensation law is intended to relieve society of the burden of caring for injured workers and to place the responsibility on the industry served. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960). Thirdly, unemployment benefits are of more limited amount and duration than workers’ compensation benefits, and these benefits are not provided as an alternative to any other form of legal redress, as is true of workers’ compensation. See, Acton v. Fort Lauderdale Hospital, supra. The law enacted in 1979 actually combined workers’ compensation and unemployment benefits to a limited extent by providing that an injured worker may be eligible to receive both workers’ compensation and unemployment benefits. Section 440.15(H). It is significant that the court in Edwards v. Metro Tile Company, 133 So.2d 411, 412 (Fla.1961), when faced with the issue (although in a different context than in this case) of whether a claimant could simultaneously accept workmen’s compensation and unemployment benefits, declared: “The fact that he is not able to obtain a job during the period of alleged disability will not preclude him from receiving the benefits of both types of protection” (emphasis supplied). Finally, the interpretation advocated by the employer/carrier would relegate the permanently physically impaired but unemployed worker to the same status as the unimpaired unemployed worker, thereby depriving those workers’ compensation claimants of a remedy for work-related injuries, and seriously affecting, in our judgment, the rational balancing of the rights and interests of both employers and employees which is necessary to give validity to the wage loss concept. Acton v. Fort Lauderdale Hospital, supra; Chapman v. Dillon, 415 So.2d 12 (Fla.1982); Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974); Kluger v. White, 281 So.2d 1 (Fla.1973); Carr v. Central Florida Aluminum Products, 402 So.2d 565 (Fla. 1st DCA 1981); Perez v. K-Mart Corp., 418 So.2d 1052 (Fla. 3rd DCA 1982).

We hold that the unavailability of jobs due to economic conditions does not preclude recovery of wage loss benefits, and, accordingly, it is not necessary for a wage loss claimant to present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions. Any other decision on this issue would convert wage loss hearings under the act into seminars on economics, requiring the gathering and presentation of complex information beyond the ken of all but the most schooled in the field of economics, and certainly beyond the resources and ability of the average worker to present or defend against. The sheer impracticability of burdening wage loss claim procedure with such evidence is obvious. Not the least of the difficulties is the absence of any guide or standard of measure to determine when conditions in a given area have reached the “economic depression” or “recession” stage. Moreover, even if the question might be considered one of fact to be established to the satisfaction of the deputy commissioner, just as are other factual issues, this court is not at liberty to create a rule whereby an injured employee’s entitlement to workers’ compensation benefits hinges on after-injury economic conditions.

We have not overlooked the contentions that our decision will drastically affect workers’ compensation insurance rates. Whether these fears are founded or unfounded, we are not prepared to say. Our decision is based upon what we consider to be legal, not actuarial, considerations. We are concerned, however, that those arguing for the appellants have raised the specter of hundreds (perhaps thousands) of minimally impaired employees receiving full wage loss benefits over a period of years, even to the maximum (approximately ten years) provided by the law, because of our decision. This and other arguments in similar vein only serve to emphasize, in our opinion, the survival of an attitude of adversariness, instead of cooperation, that in the past has characterized the administration of the workers’ compensation law. We suggest that it lies within the power of the participants in the workers’ compensation system itself to avoid wage loss claims which might be considered unwarranted or excessive by concentrating their efforts on rehabilitation and reemployment of injured workers, rather than by aiming for technical interpretations by which it is hoped to defeat or diminish the recovery of benefits by the injured employee.

The order appealed from is AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, MILLS, ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, SHAW, WENT-WORTH, JOANOS, THOMPSON and WIG-GINTON, JJ., concur.

OPINION ON MOTION FOR REHEARING OF EN BANC DECISION

PER CURIAM.

Appellants’ motion for rehearing asserts that the court has overlooked the facts and the law. We disagree.

There were two wage loss hearings. The deputy commissioner denied the wage loss claim for the period covered by the first hearing, primarily because of an inadequate work search. Regency’s job offer was made prior to the first hearing, and did not tell claimant what the job would consist of. Regency had previously refused to reemploy claimant and had told her there would be no light work available. The claimant’s medical release specified light work, and claimant knew she could not do maid’s work, which was beyond her physical capabilities.

Wage loss claims were filed for the period subsequent to the first hearing. The claimant checked with the state employment service on several occasions and conducted a work search which was commensurate with her means and abilities. Her attorney also repeatedly requested that Regency reemploy claimant, or that Regency and the carrier provide rehabilitation, retraining, or job placement counselling and assistance. The E/C “stonewalled,” provided neither, and offered no explanation for their refusal. The deputy commissioner found claimant’s job search sufficient, and awarded wage loss benefits. His order contained the finding that the employer “has not, to the date of this hearing, offered claimant employment.” The correctness of this finding, for the period covered by the wage loss benefits awarded, is not challenged in this appeal. There is not a scintilla of evidence that Regency held a job open for the claimant, and therefore no possibility of prejudice to Regency by the claimant’s delay in actively seeking (for the second time) reemployment by Regency.

Wage loss claims are filed and determined on a month-by-month basis. Deltona Corporation v. Morris, 418 So.2d 1274 (Fla. 1st DCA 1982). The failure to qualify for wage loss for one period does not bar recovery of wage loss benefits for a subsequent period. The claimant clearly demonstrated repeated requests for reemployment and an adequate job search. The burden shifted to the E/C to prove that the claimant voluntarily limited her income or failed to accept employment commensurate with her abilities. Pompano Roofing Co., Inc. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982). These issues presented questions of fact for determination by the deputy commissioner as to which no error has been shown. See, Clay Hyder Trucking v. Persinger, 416 So.2d 900 (Fla. 1st DCA 1982).

The motion for rehearing of the en banc decision is DENIED.

ROBERT P. SMITH, Jr., C.J., and McCORD, ERVIN, BOOTH, SMITH, L., SHIVERS, SHAW, WENTWORTH, JOA-NOS and WIGGINTON, JJ., concur.

MILLS, J., concurs specially with opinion and THOMPSON, J., concurs.

MILLS, Judge,

concurring specially:

Although I would deny the E/C’s motion for rehearing, because of the far-reaching effects of the decision in this case, I would certify the following question to the Supreme Court of Florida as one of great public importance:

Should the unavailability of employment due to economic conditions be a factor in determining entitlement to wage-loss benefits?

      . 397 So .2d 1202 (Fla. 1st DCA 1981). That opinion states a claimant must show either (1) “that his work search was successful, but that he was unable to perform the work [or (2)] he would have to show that his work search was unsuccessful due to his disability (rather than unavailability of work).” 397 So.2d 1204. Cited for this proposition are Teleprompter, Inc. v. Springer, IRC Order 2-3439 (May 19, 1978), and Westco Aluminium, Inc. v. Johnson, 8 FCR 170, cert. den., 289 So.2d 738 (Fla. 1974). In each of these cases the unavailability of work in question related to a period after claimant had returned to work and lost employment in a general lay-off unrelated to his capabilities, or had relinquished employment for reasons unrelated to his injury or capability. Plainly, such specific proof permits a conclusion that unemployment is not injury-related, quite consistent with a general rule that causal relation may be shown through economic dislocation as well as physical incapacity.

      . See also Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); and Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981). To the extent that Wal-burn (in addition to reversing total disability benefits) found insufficiency of work search for wage loss “because work was unavailable,” 409 So.2d at 154, our decision in the case at bar necessarily recedes from that portion of the opinion in principle, even if distinguishing facts might arguably justify the majority decision there. This conflict serves as the basis for treatment of the current case by the court en banc pursuant to Rule 9.331.

      . Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982).

      . See Ken Lones Landscaping v. Tucker, 395 So.2d 272 (Fla. 1st DCA 1981), for application of the physical incapacity standard to temporary total disability. We do not here consider all distinctions which may affect loss of earnings before and, as in the present case, after maximum medical improvement.

      . Coca-Cola Company — Foods Division v. Luden, 399 So.2d 1023 (Fla. 1st DCA 1981), discussed in oral argument in the present case, illustrates the impact of evidence concerning job availability as it relates to the adequacy of a work search. Coca-Cola is not a 1979 wage loss case, however, and although the lack of “job openings” is discussed in the opinion, there is no indication that general economic conditions were implicated in the decision of the court.

      . Kerce v. Coca-Cola Company — Foods Division, 389 So.2d 1177 (Fla.1980), rejected the employer/carrier’s contention that the seasonal nature of employment had to be taken into account in determining pre-injury wage earning capacity. Speaking through Mr. Justice England, the court stated (at 1178): “In approaching the issue posed here we are guided by the ‘most favorable remedy’ doctrine, which provides that ‘where the Act is susceptible of disparate interpretations, the court will adopt the construction which is most favorable to the employee.’ Henderson v. Soi Walker & Co., 138 So.2d 323, 327 (Fla.1962).” Thus, we reject in the present case, arguments which urge the reading of “able to earn” in its narrowest sense, that is, as referring only to the employee’s post-accident physical capabilities. The requirement that post-accident earnings shall include consideration of earnings from “sheltered employment,” (440.15(3)(b)2.) also serves to dispel any notion that “able” is intended to' take into account only the physical ability to work. This court has very recently rejected the contention that evidence merely tending to show the “ability to earn” a certain sum may be used to reduce wage loss benefits where an adequate work search has been conducted and no employment was obtained, in the absence of proof by the employer/carrier that the employee voluntarily limited his income or failed to accept a job within his abilities. Vida Appliances, Inc. v. Gates, 416 So.2d 1186 (Fla. 1st DCA 1982).

      . Able counsel for amicus curiae Risk Management Services, Inc., while advancing the purely semantical argument under discussion, also candidly asserts that the issue involves a “policy question” which is “too important to turn on such a fine line,” and urges that the policy question should be decided in accordance with “what is the best course” for Florida’s work force and its industry, keeping in mind that all workers’ compensation systems are characterized by their “mutual tradeoffs” (Risk Management brief, page 3). In response, we would point out that this court is not the final arbiter of what is the “best course” on any given issue except in a narrowly limited way, since generally speaking what is wise, prudent, and advantageous are matters exclusively within the domain of the Legislative Branch.

      . The parties have not referred to any statutory provision concerning the effect of changing economic conditions, if any, on eligibility for wage loss benefits. However, we note that Section 440.15(3)(b)5. and 6. provide for an adjustment on account of inflation. We also have the view that changing economic conditions are necessarily reflected, at least to some extent, in the “statewide average weekly wage,” (Section 440.12(2), (a) and (b)), and in the pre-injury wages received by an employee, which directly govern the amount of wage loss benefits recoverable.

      . Jonathan L. Alpert, able counsel and one of Florida’s recognized authorities in the field of workers’ compensation law, disagrees, and in fact insists that one of the purposes underlying the 1979 amendments was the elimination of the work search test (brief of amicus curiae, Florida Farm Bureau Mutual Insurance Company. page 8). His view is not shared by other amici curiae who submitted briefs. Professor Alpert’s disenchantment with the job search test may well be justified, and the plethora of opinions of this court dealing with work search evidence all too clearly demonstrate that it is a problem area in the law. It may develop that some additional legislative solutions, touching perhaps on the work search requirement, may eventually be required to perfect the wage loss concept. However, we find no express or implied legislative intent to abolish the work search test, and we are thus guided by the rule that in the absence of a clear indication to the contrary, we must presume that the legislature has no intention to mandate the abandonment of the evidentiary test for employability which had become “enshrined” (as Professor Alpert concedes) in Florida compensation jurisprudence prior to 1979. (See, Exxon Company, U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978); City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980)). Professor Alpert proceeds further in his argument to urge that the determination of what a claimant is “able to earn” after an accident, “... can best be made by examining the claimant’s actual physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and the like” (Florida Farm Bureau brief, page 8). Regardless of its merit, this argument seems to urge a return to a subjective test (see, Ball v. Mann, 75 So.2d 758, 760 (Fla.1954)) to determine the economic effect of injury, an approach the wage loss concept was designed to avoid. See, Sadowski, et al., “The 1979 Florida Workers’ Compensation Reform: Back To Basics,” 7 Fla.St.U.L. Rev. 641, 649-653. A specific example of the act’s turning away from subjective factors is found in the provision that the amount an employee is “able to earn” shall in no case be less than “the sum actually being earned,” including earnings from “sheltered employment.” Section 440.15(3)(b)2. We submit, however, that consideration of the factors enumerated by Professor Alpert is still required, as in the past, in determining the adequacy and good faith of the job search, and in determining under the 1979 amendments whether the employee has voluntarily limited his employment or failed to accept employment commensurate with his abilities. Finally, with respect to Alpert’s suggestions (Farm Bureau brief, pages 18, 19) that the court should devise a rule for determining entitlement to wage loss benefits (when the employee has not returned to work) based upon a series of presumptions, using the employee’s physical impairment rating and other factors, we must point out that the proffered solution is one appropriate to legislative, rather than judicial action.

        .Teleprompter, Inc. v. Springer, IRC Order 2-3439 (May 19, 1978), and Westco Aluminum, Inc. v. Johnson, 8 FCR 170 (1973), cert. den. 289 So.2d 738 (Fla.1974), cited as authority in Lehigh, dealt with temporary disability benefits. Teleprompter rejected a claim of total wage earning capacity loss, but accepted a finding that the claimant had “some degree” of diminution of wage earning capacity. Westco, at 172, cites three earlier Florida Supreme Court cases on the requirement that claimant must prove that his inability to obtain employment is “due to his physical capacity.” It is significant, however, that examination of the opinions in those three cases reveals that neither deals with the question of unavailability of jobs as a cause of wage loss. See, Concord Realty Corp. v. Romano, 159 Fla. 1, 30 So.2d 495 (1947); Clark v. Western Knapp Engineering Co., 190 So.2d 334 (Fla.1966); and City of Hialeah v. Warner, 128 So.2d 611 (Fla.1961).

      . Parenthetically, we feel that it is fair to observe that the duration and amount of wage loss claims of any injured employee will vary in direct proportion to the extent to which employers and carriers realistically accept the obligation to rehabilitate, if necessary, and to otherwise aid in the reemployment of the injured worker. See, Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982); Trend Management, Inc. v. Boyd, 417 So.2d 732 (Fla. 1st DCA 1982); Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982); Viking Sprinkler Co. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982).

      . Section 440.15(1 l)(b) provides that if an employee is entitled to both wage loss and unemployment compensation benefits, the unemployment benefits shall be primary and the wage loss benefits supplemental only, and the sum of the two shall not exceed the amount of wage loss benefits otherwise payable. Subpar-agraph (a) of that section provides that no workers’ compensation benefits are payable for temporary total or permanent total disability for any week in which the injured employee has received, or is receiving, unemployment compensation benefits.

      . Certainly evidence that a job was not obtained because employers were “not hiring” (as the employee in this case testified) does not establish unavailability of jobs due to economic conditions. We take it as not subject to serious question that many businesses and industries at any given time, in any given locality, even in times of relative economic prosperity may be “not hiring” when a particular person applies for work. If the claimant’s search for work was sufficiently extensive and intensive, then in order to defeat her wage loss claim it was incumbent upon the employer or carrier to show that jobs were available to her with employers who “were hiring.” Wright v. Gulf And Western Food Products, 401 So.2d 1316 (Fla.1981).

      . We find very little of value in such arguments. It can just as well be presumed that, for the most part, the “minimally impaired” employee will be rehired in the same job by the same employer; and we may also assume that in many instances even the severely impaired worker will be rehired (with or without prior rehabilitation) by the same or other employer at wages equal to his pre-injury earnings, thus drawing little or no benefits from the workers’ compensation system after reaching maximum medical improvement. Perhaps even more significant is the fact that if we followed the reasoning adopted by the employer/carrier to its logical conclusion, in times of economic recession not just the minimally impaired worker but also the severely impaired worker would be deprived of all wage loss benefits.

      . The view that the 1979 amendments mandate a different approach to the administration of workers’ compensation is nowhere more constructively reflected than in Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982), where the court stated:
      The common incentive of both unemployed worker and employer/carrier to reestablish gainful employment serves the self-executing goals of chapter 440 and, in the employer and carrier, militates against the laissez-faire attitude condemned by this Court in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA 1981).
      4: >$: s}s
      A carrier in active contact with a recovering but unemployed worker, monitoring the adequacy and progress of the work search, is a carrier indirectly assisting the search and abundantly serving the purposes for which chapter 440 exists. A former employer likewise serves who responds affirmatively and in its own interests to the worker’s conscientious application for reemployment.

      . “Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man’s noblest impulses.” Solzhenitsyn, Harvard Commencement Speech, quoted in 31 Mercer Law Review, No. 2, page 403 (Winter, 1980).


author: BOARDMAN, Judge.

text:
    Frederick DEBORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1539.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.
    Rehearing Denied Sept. 10, 1982.

      Raymond P. Harris, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Frederick Debord appeals a judgment and sentence for grand theft, contending that the trial court erred in denying his motion to suppress. We reverse.

On January 3, 1981, the police arrested one Walter Johnson for a drug violation. In a search incident to that arrest, certain stolen items were discovered in Johnson’s possession. Johnson informed the arresting officers that the stolen goods belonged not to him, but to appellant. This information was relayed to Detective Moore, who apparently was in charge of the investigation of the burglary in which the goods were stolen. Although Moore had not personally interviewed Johnson, he stated that he had in a sworn affidavit.

The affidavit indicates that Moore contacted Johnson and that Johnson told the affiant/officer that the stolen items had previously been in appellant’s possession. This was not so; the affiant had never contacted or interviewed Johnson. Based on this affidavit, an arrest warrant was served on appellant. In a search incident to the execution of that warrant, certain statements and tangible items were obtained from appellant. Appellant sought suppression of these statements and items.

Where an affidavit forms the actual basis of a warrant, the trial court has the duty to determine if the statements contained therein are, in fact, untrue. If so, the court is permitted to excise the false parts of the affidavit. If the remaining allegations of the affidavit will still support a probable cause determination, then the court may find that the warrant is valid. If not, then the warrant is invalid, and the arrest is unlawful. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Bogard, 388 So.2d 1296 (Fla. 4th DCA 1980).

Under the circumstances here, the entire portion of the affidavit concerning Johnson’s alleged statements should have been excised. Without these statements, probable cause will not lie to support the warrant on the basis of the affidavit. Therefore, appellant’s arrest was unlawful. Since the aforementioned statements and items were a product of the unlawful arrest, they should have been suppressed as fruits thereof. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Accordingly, appellant’s judgment and sentence is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

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