author: McCORD, Judge.

text:
    SANTA ROSA COUNTY, Florida, a body politic, and the City of Gulf Breeze, a municipal corporation, Appellants, v. Lewis B. POLLAK and Brenda Pollak, husband and wife, et al., Appellees. Lathrop M. Witherill and Ruth H. Witherill, husband and wife, et al., Intervenors.
    No. AB-208.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Rehearing Denied Sept. 10, 1982.
    Susan Novotny and Robert Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellants.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellee Mae Barlow.
    Barry Silber and D. L. Middlebrooks of Levin, Warfield, Middlebrooks, Mabie & Magie, for appellees Lay.
    J. McHenry Jones of Jones & Welch, Pensacola, for appellees Poliak.
   McCORD, Judge.

Santa Rosa County and the City of Gulf Breeze appeal from a summary final judgment quieting title to a parcel of land in favor of appellees (landowners). These landowners are the owners of lots fronting on the disputed parcel of property, which separates their lots from Pensacola Bay in Santa Rosa County, Florida.

The pertinent facts to this appeal are rather involved but are undisputed. In September of 1950, Pensacola Shores, then the owner of the disputed land, entered into an unrecorded contract for sale of the land with Casablanca Company. This contract provided that Casablanca, after it acquired title, could subdivide the property into lots, blocks and streets but that “no part shall be designated or dedicated as parks or public property other than streets.” In December of that year, Casablanca filed a plat of its proposed subdivision with Santa Rosa County. The filed and recorded plat referred to the parcel of property in dispute as Sand Beach Park. In filing the plat, Casablanca represented that it was the owner of the land and included in the plat the dedicatory language that “all streets and parks are hereby dedicated to the public ...” The plat was subsequently considered by the Board of County Commissioners on December 12, 1950, and was approved “subject to approval of the attorney for the board.” There is no indication in this record that the county attorney ever approved the plat.

Casablanca did not actually acquire title to the land until March of 1951. As the landowners point out, the controlling statute required, among other conditions to the offering and acceptance of such plats, that “there shall be a dedication of the plat by the owner or owners, and his or their wives.” § 177.06, Fla.Stat. (1949). Casablanca subsequently sold lots in this subdivision pursuant to the 1950 recorded plat, which contained the Sand Beach Park designation.

In 1962 the trustees of Casablanca, by then a dissolved Florida corporation, executed [pursuant to Section 608.30, Florida Statutes (1961)] a deed titled “quit-claim deed,” in favor of the landowners as to the Sand Beach Park parcel. Also, in 1962, the City of Gulf Breeze became a municipal corporation.

Upon these facts the landowners argue that the final summary judgment can be sustained under any of three theories: (1) that the offer of dedication of the park by Casablanca was void ab initio because Casablanca was not the legal owner at the time it dedicated the plat; (2) that the quitclaim deed filed in 1962 effectively revoked the earlier offer of dedication of the alleged park before there was an acceptance, or (3) that the alleged park dedication was never accepted. Because the trial judge did not state the reasons for ruling as he did, we cannot determine upon what ground or grounds he entered summary judgment.

We find it unnecessary to rule upon the first theory because we find that even if the offer of dedication of the park by Casablanca was a valid offer, the deed which was filed September 11, 1962, effectively revoked the offer of dedication before it was accepted. There was never a formal acceptance by the county or city, and the record does not show an implied acceptance by a public user before the deed was recorded.

This was not an ordinary quitclaim deed. By its language, the trustees not only re-mised, released and quitclaimed the dissolved corporation’s interest in the property described as Sand Beach Park to the individual landowners fronting on such property but conveyed the dissolved corporation’s interest in such property to the landowners. It also stated the purpose for which the deed was drawn in language as follows:

WHEREAS, CASABLANCA COMPANY, a Florida Corporation was the owner and developer of the several parcels of Casablanca Subdivision in Santa Rosa County, Florida; and
Whereas, there is some doubt about the ownership of certain parcels or strips of land lying between the water and some lots on said subdivision; and
Whereas Casablanca Company, has been dissolved under the laws of the State of Florida, leaving the undersigned, ... as the sole surviving stockholders, directors and officers of the Casablanca Company, which individuals now own individually, or as trustees for the dissolved corporation, all right, title or interest remaining of record in the Casablanca Company, and
Whereas it is the desire of the undersigned grantors by this conveyance to remove all doubt as to the title and accompanying riparian rights in certain supposedly waterfront lots in various parcels of Casablanca Subdivision;
KNOW ALL MEN BY THESE PRESENTS that we, .. . individually, and in our capacities as sole surviving stockholders, officers and directors of Casablanca Company, a dissolved Florida Corporation, do hereby remise, release, quitclaim and convey to the record title holder or holders of each lot in the following described subdivisions: . . .
their heirs, executors, administrators, successors and assigns, all our right, title and interest in and to any unplatted parcel of land lying between the lots as shown in said plats, and the water. ... It is our intent hereby to vest title in unplatted parcels of land in the individual adjacent lot owner with full riparian rights attendant thereto, with the limits of each lot owner’s ownership being delineated by an extension of his lot lines to the water.

This deed of conveyance with the aforesaid clarifying language is completely inconsistent with a continuation of the offer of dedication of the property described as Sand Beach Park, and its recordation put the county and city on notice that the offer was revoked as to the park. Such offer previously made by the grantor corporation could not remain as an open offer after the trustees of the dissolved corporation had conveyed its interest to other parties. Thus, the effect of the deed was to withdraw and revoke the previous offer of dedication insofar as the property known as Sand Beach Park is concerned. The law regarding this is well stated by the Supreme Court in City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726, 729-30 (Fla.1920):

“Decisions recognize a clearly defined distinction between the rights acquired by the public through dedication effected by platting and sale, and the private rights acquired by the grantees by virtue of the grant or covenant contained in a deed which refers to a plat, or bounds the property upon a street through the grant- or’s lands. These decisions adopt the view that where lands are platted and sales are made with reference to the plat, the acts of the owner in themselves merely create private rights in the grantees entitling the grantees to the use of the streets and ways laid down on the plat or referred to in the conveyance. But these rights are purely in the nature of private rights founded upon a grant or covenant, and no public rights attach to such streets or lands until there has been an express or implied acceptance of the dedication, evidenced either by general public user, or by the acts of the public authorities. In this view, the making of the plat and the sale of lands with reference thereto are merely evidence of an intent to dedicate, which like every other common law dedication, to be made complete and carried into effect so as to create public rights, must be accepted and acted upon by the public.”
A common-law plat has no effect as a conveyance, and an offer to dedicate thereby created may be revoked by the owner or his grantee at any time before acceptance by the public. After a common-law dedication is once accepted by the public, it is irrevocable except with the consent of the public and of those persons who have vested rights in such dedication. The acceptance of a common-law dedication need not immediately follow the offer to dedicate, but must be within a reasonable time and before withdrawal by the offerer. What constitutes a revocation of an offer to dedicate depends very largely upon the circumstances and is usually a question of fact, and it may be shown by acts inconsistent with the public use to which the land is offered to be dedicated, as by conveyance of the property, . . .
The general rule seems to be that the platting of land and the sale of lots pursuant thereto constitute a dedication, if it may be so called, of the public places delineated upon the plat only as between the grantor and purchaser, and that, so far as the municipality is concerned, such acts amount to a mere offer of dedication, and there is no complete dedication without an acceptance of some kind by the municipality.
Where a common-law offer of dedication has been made and has not been accepted by or for the public, a conveyance before acceptance of the property so offered may constitute a revocation as to the public of the offer to dedicate. [Citations omitted; emphasis supplied.]

As can be seen from the above quotation, it is immaterial to this cause of action that lots were sold to other parties in reference to the plat. This suit involves only public rights to the property known as Sand Beach Park and does not involve or adjudicate private rights of other lot owners in the subdivision.

AFFIRMED.

ERVIN and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LIDO SPA HOTEL and Old Republic Insurance Co., Appellants, v. Carlos PEREZ, Appellee.
    No. AL-257.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Rehearing Denied Sept. 1, 1982.
    Mary Ann Stiles, Tampa, and John F. McMath, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, and David H. Levine, Miami, for appellee.
   PER CURIAM.

The employer/carrier, in this appeal from an award of temporary total disability compensation and medical benefits, asserts lack of competent substantial evidence to prove disability or to show causal relation between claimant’s hernia and the accident of March 16, 1980, and error in award of penalties, interest, costs and fees.

Claimant’s medical witness confirmed a causal relationship between the accident and a hernia not immediately diagnosed as such by examining physicians who did not testify. The witness further attested claimant’s inability to work, in any occupation for which he is otherwise suited, while suffering a hernia for which he has awaited repair some two and a half years. That testimony amply corroborates claimant’s history of his symptomatology which the deputy found to be credible.

Since the claimant prevailed in a proceeding before the deputy commissioner the award of costs is proper. § 440.34, Florida Statutes (1979).

With respect to attorney’s fees, the decretal portion of the order reads as follows:

It is ordered that the employer . . . shall:
6. Pay the claimant’s attorney a reasonable attorney’s fee. Jurisdiction to award an attorneys fee and determination as to who shall pay same is herein specifically retained.

We do not reach the question of whether the record supports an award of attorney’s fees based on § 440.34(3)(c), because the reservation of jurisdiction to determine who shall pay the fee contradicts the award. Appellant’s fourth point on appeal is therefore premature. We note, however, that this ambiguity has recently recurred with some frequency in orders appealed here, resulting in premature briefing by the parties on the question of entitlement to an award of attorney’s fees. Orders should, of course, be drafted with precision in the disposition of fees as well as other issues.

The order is affirmed subject to determination of the fee issue.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ, concur.


text:
    David HOTTMAN, Appellant, v. Anna HOTTMAN, Appellee.
    No. 81-541.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Rehearing Denied Sept. 8, 1982.
    Douglas R. Girvin, Jupiter, for appellant.
    Hal H. McCaghren, West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks reversal of a final judgment of dissolution of marriage upon four points, three of which we affirm. We agree, however, with his argument that the trial court erred in awarding a special equity in the marital residence to appellee.

Appellant bought the residence prior to his marriage. In order to finance the purchase of the property, he gave a first and a second mortgage. One was satisfied before he and appellee married in 1967.

During the marriage, record title to the domicile remained in appellant’s name alone. Appellee, however, contributed her earnings and child support payments to a joint bank account from which household expenses, including the mortgage payments, were paid. The second mortgage was satisfied in 1977.

Despite the absence of evidence on the current value of the marital residence, the trial judge apportioned one-half of the principal balance of the second mortgage ($2,850.00) at the time of marriage against the purchase price of the home ($15,000.00) to award appellee a one-sixth interest in the property as a special equity. In making the award, the trial judge erred inasmuch as appellee’s contributions to the general living expenses of the parties were “simply non-recoverable contributions to the marriage.” Mitchell v. Mitchell, 368 So.2d 628, 628 (Fla. 4th DCA 1979).

In Ingram v. Ingram, 379 So.2d 955 (Fla.1980), the supreme court held a district court of appeal erred in reversing a trial court’s final judgment in which the court refused to grant the husband a special equity in the marital residence. The wife had entered the marriage with title to the house in her name. During the course of their eight-year marriage, the parties contributed to the house payments, although the husband made the largest financial contribution. In quashing the opinion of the appellate court with directions to remand, the supreme court wrote:

The determination of the trial judge that there was no “special equity,” as we have defined it ... was proper.... This does not mean that the trial judge was without the discretionary authority to make an alimony award to the husband if such an award was necessary to do equity between the parties.

Id. at 956 (citations omitted).

In the case under review, we reverse the decision on this point and remand the cause with directions to vacate the award of special equity. We note the trial court has the authority under Ingram to consider awarding additional alimony to appellee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


author: COWART, Judge.

text:
    STARLITE SERVICES, INC. and Eddie Lee Ross, Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    Nos. 81-418, 81-422.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Rehearing Denied Aug. 30, 1982.

      Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant Starlite Services, Inc.
    Gregory A. Popp of Gregory A. Popp, P. A., Merritt Island, for appellant Ross.
    Gordon H. Harris and Ladd H. Fassett of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellee.
   COWART, Judge.

Appellant, Eddie Lee Ross, sued his employer, appellant Starlight Services, Inc. (Starlight) and its group insurer, appellee The Prudential Insurance Company of America (Prudential) seeking enforcement of a group insurance contract and asking for a determination that he was a covered employee thereunder. Starlight cross-claimed against Prudential, asserting that Starlight had either performed as required by the insurance policy or, alternatively, that Prudential had waived such performance. From a summary judgment in favor of Prudential, Starlight and Ross appeal. We affirm.

Taken in a light most favorable to appellants, the undisputed facts show the following. In February of 1978, Prudential contracted with Starlight to offer group insurance (life, accident, and sickness) to Star-lite’s employees. Under the terms of the contract, a new employee is not automatically covered from the first day on the job; instead the employee must have worked for one month on a full time basis (the employment waiting period). Even after the waiting period is completed, the employee is not automatically covered. The contract also contains a section entitled “Becoming Insured For Employee Insurance.” This section provides that the employee shall be insured from the first day following his employment waiting period on which the following requirements are met: (1) the employee must request insurance on a form satisfactory to Prudential; (2) agree to make the required contributions; (3) furnish evidence of insurability if he has not requested he be included within his first month of employment; and (4) comply with the “active work requirement,” i.e., the employee must be actively at work on a full time basis at the business establishment of the employer. Ross was employed by Star-lite on April 19, 1978 and was subsequently injured in an automobile accident on September 9, 1978. As a result of the accident, Ross was hospitalized from the date of the accident until November 11, 1978. On September 19, 1978, while Ross was in the hospital and not actively at work, Starlite submitted Ross’ application for insurance to Prudential with a cover letter explaining the application had not been previously submitted because of an error by Starlite. Prudential responded that the application would be accepted as “on time,” and therefore Ross would not be required to submit evidence of insurability (normally required under (3) above). Prudential subsequently issued a certificate of insurance with an effective date of 9/18/78; however, it was noted that if Ross did not satisfy the active work requirement, the effective date was subject to delay until Ross did satisfy the requirement.

In addition to the above facts, Starlite filed an affidavit of one of its officers who stated that an agent of Prudential was notified in September, 1978, of Ross’ accident and that the agent advised the affiant to file Ross’ claim. The agent stated the claim would be accepted in the event that Ross would have been insurable at the time of the accident. Although this was disputed, for purposes of summary judgment, we assume the above to be true. Appellants contend that all the above facts at least create an issue of fact as to whether Prudential waived the contractual prerequisites to an employee becoming insured. Although not phrased this way by appellants, they actually contend that Prudential is es-topped by its actions to deny coverage.

It is well settled in Florida that the doctrines of waiver and estoppel are not applicable to matters of coverage as distinguished from grounds for forfeiture. Six L’s Packing Co. v. Florida Farm Bureau Mut. Ins. Co., 276 So.2d 37 (Fla.1973) (adopting opinion of 4th DCA [268 So.2d 560] as its own). In Six L’s Packing Company, it was stated:

The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage as distinguished from grounds for forfeiture.... In other words, while an insurer may be estopped by its conduct from seeking a forfeiture of a policy, the insurer’s coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.
We are therefore faced with the threshold determination of whether the pertinent clauses go to the coverage of the policy as distinguished from furnishing a ground for forfeiture.
268 So.2d at 563. [citations omitted, emphasis in original].

In this case we are faced with an identical threshold determination. It is undisputed in the instant case that Ross did not apply for insurance until after his injury and that Prudential’s acceptance of this application was made subject to Ross’ compliance with the active work requirement of the group policy. A substantially identical clause in a group policy was held to be a condition of coverage in Radoff v. North American Company For Life and Health Insurance, 358 So.2d 1138 (Fla. 3d DCA 1978), and we reach the same result here.

Since the active work requirement was one of coverage, the alleged waiver of that provision by Prudential’s agent is of no moment. Consequently there was no dispute of a material fact and the trial court’s summary judgment is

AFFIRMED.

COBB, J., concurs.

DAUKSCH, J., dissents without opinion.

      . Although separate legal theories, we note that waiver and estoppel are quite often opposite sides to the same conceptual coin; a litigant may arguably be “estopped” to contend a point the litigant has previously waived.

      . In addition to the Florida supreme court, every district court of appeal has embraced this proposition. See, e.g., Manacare Corp. v. First State Ins. Co., 374 So.2d 1100 (Fla. 2d DCA 1979); Radoff v. North American Co. for Life and Health Ins., 358 So.2d 1138 (Fla. 3d DCA 1978); Unijax, Inc. v. Factory Ins. Assoc., 328 So.2d 448 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976); Six L’s Packing Co. v. Florida Farm Bureau Mut. Ins. Co., 268 So.2d 560 (Fla. 4th DCA 1972), cert. discharged, 276 So.2d 37 (Fla.1973). See generally Appleman, 16B Insurance Law and Practice, § 9090 Elements of Waiver and Estoppel (1981); Annot., 1 ALR.3d 1139, 1155 § 8 (1965) (Doctrine of estoppel or waiver as available to bring within coverage of insurance policy risks not covered by its terms or excluded therefrom).


author: DAUKSCH, Judge.

text:
    Otis Carr ALESHIRE, Samuel Brian Aleshire and Allstate Insurance Company, Petitioners, v. Richard Charles ACKERMAN, Respondent.
    No. 82-924.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Rehearing Denied Aug. 30, 1982.

      John G. Rooney, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for petitioners.
    No appearance for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Judge.

Before us for consideration is a “Petition for Writ of Certiorari to the Fifth District Court of Appeal.” Of course, petitioner means to have the writ issued to the Circuit Court; we cannot issue the writ to our own court. We cannot issue an Order to Show Cause as contemplated in Rule 9.100(f) because the petition does not demonstrate a preliminary basis for relief. All that is before us are bare allegations that:

1. Petitioner seeks to have reviewed and quashed, in part, the Order of the Trial Court in Civil Action No. 81-1796-CA-01, Division B, entered on the 8th day of June, 1982, in the Circuit Court of the Seventh Judicial Circuit in and for Volu-sia County, Florida.
2. This Petition is presented pursuant to Rule 9.100(c) (Fla.R.App.P.).
3. This Petition is presented because the effect of the above-mentioned Order is to deny the Petitioners their right to adequate discovery before trial which denial will result in significant injury to the Petitioners who will not be able to properly prepare for trial on the merits. The Order in effect denies the Petitioners right to discovery as provided by Rule 1.280 (Fla.R.Civ.P.).

There is no appendix as required by the rule and we do not have even the vaguest notion as to “facts upon which the petitioner relies.” Rule 9.100(e)(2). No argument and no citations of authority are offered as required under 9.100(e)(4). In fact we were not even furnished with the order sought to be quashed.

WRIT DENIED.

COBB and COWART, JJ., concur.


text:
    Charles Ricky GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. AC-233.
    District Court of Appeal of Florida, First District.
    July 23, 1982.
    Rehearing Denied Aug. 31, 1982.

      Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Goodman appeals his convictions of burglary of a structure and petit theft entered after a jury trial. He raises several questions on appeal and, although we affirm the convictions, two points warrant discussion.

On February 10, 1980, appellant, his brother Marvin, Brett Clevinger and Richard Sanders participated in the burglary of a church. He was arrested on October 9, 1980, and charged by information. He pled not guilty, and after several continuances a jury trial was held on March 17, 1981.

Clevinger and Sanders testified for the State, and in addition to detailing the events of the night of the burglary Clevinger testified that appellant had threatened him while they were in the Clay County jail prior to trial. Clevinger stated that he heard appellant’s voice through the vent in his cell, telling him he should think hard on his testimony at the trial because it could cause trouble for his wife and relatives. Appellant contends that this testimony should have been excluded.

In support of his contention that the testimony relating to the threat was inadmissible appellant relies on Fasenmyer v. State, 383 So.2d 706 (Fla. 1st DCA 1980). In Fasenmyer, a witness had testified that the defendant threatened to kill him if he went to the police. On appeal, Fasenmyer challenged the admissibility of the threat evidence. The opinion briefly addressed the point, stating:

His testimony of the alleged threat was simply irrelevant to any fact at issue. Instead it tended only to put Fasenmyer’s character in issue, although he did not testify at trial. ‘[E]vidence of a distinct crime in no way connected by circumstances with the one in issue is inadmissible.’ Williams v. State, 110 So.2d 654, 661 (Fla.1959). Because we reverse on other grounds for new trial, it is unnecessary to discuss whether this violation of the Williams Rule was harmless error. See Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980).

Id. at 708. Thus, the statement is patently dictum and the opinion does not indicate the Williams Rule applied in that case. In any event, we conclude that the law applying to alleged threats made by the defendant in this case is accurately treated in Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980). In Jones, this court stated:

An attempt by a defendant or third person to induce a witness not to testify or to testify falsely is admissible on the issue of defendant’s guilt, provided it is shown that that attempt was made with the actual participation, knowledge, or authorization of the defendant. Duke v. State, 106 Fla. 205, 142 So. 886 (1932).

Id. at 1043. Since the threat in this case was an attempt by the defendant to induce a witness to testify falsely, and was shown to have been made with actual participation of the defendant, the testimony was properly admitted.

The other point raised by appellant which merits attention relates to the cross-examination of a defense witness regarding his prior criminal activity. On direct examination, Marvin Goodman had testified that appellant was not with them when he, Sanders, and Clevinger burglarized the church. He also admitted that he was residing at the Georgia State Penitentiary because of a Georgia burglary conviction. On cross-examination, the following colloquy took place:

Q. I believe Mr. Durrance asked you if you had ever been convicted of a crime and you told us about the burglary up in Georgia.
What are the status of the cases in Jacksonville that you left Jacksonville and went to Georgia on? How did you leave those cases?
A. I was out on bond. My grandmother died and I went up to go to her funeral.
Q. My question was: The status of those cases. Were they set for trial, had you pled guilty to those cases and awaiting sentence? What was the status?
A. I had made a guilty plea on them, but I was not sentenced on them.
Q. Okay. So you entered pleas of guilty to crimes in Jacksonville.
A. Yes, sir.
Q. Okay. What crimes were those that you entered pleas of guilty to in Jacksonville and have not been sentenced on?
MR. DURRANCE: Just a moment. Now, Your Honor, at this point, I object on the grounds of relevancy to the case against Charles Ricky Goodman. I recognize there’s been some other testimony in a similar way, but it came about in a different manner, too.
There’s been no showing that this person has made any prior inconsistent statement or accusation as in the other case.
THE COURT: Well, I believe he did. I think he testified on direct, Mr. Durrance, that he’s only been convicted of the one crime in Georgia; did he not?
MR. DURRANCE: That’s correct. That’s right. I don’t mind him going into that and he already has and he’s explained it. He said I pled on some, but never was sentenced or adjudicated.
I can add another ground for the objection and that is that it’s repetitious.
THE WITNESS: Can I say something?
THE COURT: Objection overruled.
BY MR. WIGGINS:
Q. What crimes, Mr. Goodman, did you plead guilty to and haven’t gotten back to Jacksonville for sentencing on?
A. Burglary.
Q. How many?
A. Two counts.
Q. Two counts of burglary?
A. Yes, sir.
Q. Were those businesses or people’s homes?
A. People’s homes.

We agree with appellant that the trial judge improperly overruled the objection. The witness had answered truthfully when asked about the existence and number of his prior convictions, and it was therefore improper to permit the prosecutor to inquire into the nature of those offenses. Whitehead v. State, 279 So.2d 99 (Fla.1973); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981).

We find however that the error was harmless because of the overwhelming evidence of guilt in this case. See Cunningham v. State, 239 So.2d 21 (Fla. 1st DCA 1970); Robinson v. State, 254 So.2d 379 (Fla. 3d DCA 1971).

The judgment and convictions are affirmed.

MILLS, WENTWORTH and THOMPSON, JJ., concur.

      . Appellant also argues that the threat was inadmissible because Clevinger did not see who threatened him and therefore could not positively identify appellant as the one making the threat. This argument is without merit because Clevinger specifically stated that he had known appellant a long time and could recognize his voice.

      . Id.

      . Appellant also argues that it was error to allow the prosecutor to ask the witness about the Jacksonville cases at all because they were not actually convictions. § 90.610, Florida Statutes (1979). The merits of that argument are not considered here since no objection was made to the question.

      . In addition to the weight of other evidence of appellant’s guilt, our conclusion that the error was harmless is also supported by the fact that the jury was aware that the state’s two eyewitnesses also had criminal records.


author: SCHWARTZ, Judge.

text:
    Celia PINO, Appellant, v. Jorge E. PINO, Appellee.
    No. 81-2489.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Sept. 15, 1982.
    George C. Vogelsang, Miami, for appellant.
    Barranco & Kellough, Steven Kellough and Peter H. Kircher, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

We agree with both of Ms. Pino’s claims of error in the final judgment of dissolution entered below.

First, we conclude that the trial court abused its discretion in permitting the ex-wife and the parties’ two children, a boy, eleven, and a girl, nine, to reside in the marital home, which is held by the entire-ties, for only one year following the judgment, after which it was to be sold with the proceeds equally divided. One of the reasons for this ruling was that the parties purportedly now “could not afford” to maintain the relatively luxurious four-bedroom home, which had been purchased in 1976, and in which the family had lived since then. Upon analysis in the light of economic reality, this ground provides no foundation for the determination below. The required payments, including taxes and insurance, on the outstanding mortgages on the home — which has a value of $120,000 and a net equity of approximately $56,300— are $710 per month. Since even appellate judges know what everyone else does, we take notice that, in the existing market, any accommodations which would be even remotely suitable for Ms. Pino and, more importantly, the children, would cost as much if not more than that — even though that amount would obviously not secure a place to live equivalent to their present one. The effect of the vast increase in the value of real estate and interest rates since 1976 thus entirely vitiates this avowed purpose of the order under review. It is, in a phrase, both penny-foolish and pound-foolish to force the Pino family to reside in inferior housing when little or no saving of dollars will be accomplished by the move.

It is also argued that selling the house would permit the husband to liquidate some $26,500 in outstanding debts. Indulging his desire to pay off these obligations, however, cannot serve to justify the requirement that his children be uprooted from the home in which they have lived for almost all of their lives. Smith v. Smith, 378 So.2d 11, 17 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980). The breakup of their parents’ marriage is of course itself a severe trauma to young children; this additional physical and psychological dislocation should not be imposed upon them unless there is a very good reason indéed for doing so. Since no such reason appears from this record, we order that Ms. Pino and the children be granted the right to occupy the home until she remarries or the younger child reaches majority. Kuvin v. Kuvin, 412 So.2d 900, 902 (Fla. 3d DCA 1982), and cases cited; Kemmerer v. Kemmerer, 386 So .2d 1248 (Fla. 3d DCA 1980), review denied, 392 So.2d 1376 (Fla.1981), and cases cited.

The trial court was mistaken also in refusing to require the husband to pay any portion of the wife’s attorney’s fees. The record shows not only that, by virtue of his income, Mr. Pino’s financial position is superior to hers, see Locke v. Locke, 413 So.2d 431, 432 (Fla. 3d DCA 1982); Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982), but, of perhaps greater significance, that the bulk of her lawyer’s efforts were expended in defense of a claim by Mr. Pino for custody of the children which he abandoned only on the very eve of trial. See Jaffee v. Jaffee, 394 So.2d 443, 447-48 (Fla. 3d DCA 1981). In these circumstances, the failure to award the wife a reasonable sum for attorney’s fees must be reversed, Neumann v. Neumann, 413 So.2d 1203 (Fla. 3d DCA 1982); Locke v. Locke, supra; Hudgens v. Hudgens, supra; Jaffee v. Jaffee, supra, and the trial court is therefore directed to determine and award that amount after remand.

While the judgment is otherwise affirmed, in the respects outlined it is reversed and vacated and the cause is remanded for proceedings consistent herewith.

Affirmed in part, reversed and vacated in part and remanded.

      . Nor can we conclude that the $710 figure for housing is out of line with the financial circumstances of the parties. Mr. Pino earns $36,500 a year as an Eastern Airlines executive, and Ms. Pino has a demonstrated earning capacity of at least $17,500 per year.

      . The husband did not demonstrate that there was even an economic necessity for the immediate discharge of these debts. Several, including an automobile loan, are payable in installments, and another large sum is owed to his attorneys for this litigation.

      . We leave intact the provision that Mr. Pino pay as rehabilitative alimony the full amount of the home mortgage payments for one year after the judgment, or until October, 1982. The effect of our decision concerning the home, however, is that after that date the parties, as tenants in common, are each liable for one-half of those amounts. Since the award of exclusive possession under these circumstances effectively results in an increase in the father’s child support obligations, see Pujals v. Pujals, 414 So.2d 228 (Fla. 3d DCA 1982), the trial court upon remand may, in its discretion, reconsider the support award now provided in the judgment in the light of this additional requirement. See Winner v. Winner, 370 So.2d 845 (Fla. 3d DCA 1979).


text:
    Wayne DENNIS, Virginia Green, Richard A. Dennis, Claudia Prino and W. D. Development, Inc., A Florida Corporation, Appellants, v. Serge DALDOSSI, Trustee, Appellee.
    No. 82-367.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Sept. 2, 1982.
    Erstling & Erstling, South Miami, for appellants.
    Malcolm H. Friedman and Richard H. W. Maloy, Coral Gables, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the order dismissing with prejudice the third amended complaint of Dennis, et al., the plaintiffs below, which alleges, in essence, that Daldossi, the defendant, is the title owner, as trustee, of certain real property and that by virtue of their having contributed money towards the acquisition of the property or services in connection with procuring necessary zoning, the plaintiffs believe they are entitled to a judgment declaring their legal interests in such property, and the property thereafter partitioned, as against Daldossi’s claim that the property is his to the exclusion of the plaintiffs. In our view, the third amended complaint sets forth sufficient ultimate facts showing a bona fide adverse interest between the parties concerning a right of the plaintiffs and doubt about the existence of this right, so as to entitle the plaintiffs to have the doubt removed by a judgment for them or for the person, here Daldossi, shown to have the adverse interest. See May v. Holley, 59 So.2d 636 (Fla.1952); Floyd v. The Guardian Life Insurance Company of America, 415 So.2d 103 (Fla. 3d DCA 1982). If the trial court’s barebones dismissal order was based on Daldossi’s affirmative assertion that the plaintiffs’ action was barred by a bankruptcy court’s prior judgment, then since neither the complaint nor exhibits attached thereto show on their face that the action is barred, dismissal is improper. Pizzi v. Central Bank and Trust Co., 250 So.2d 895 (Fla.1971); Ciliberti v. Ciliberti, 416 So.2d 48 (Fla. 3d DCA 1982).

Reversed and remanded for further proceedings.


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    ACCOA CORP. and Old Republic Insurance Co., Appellants, v. Robert BIRD, Appellee.
    Nos. AL-252, AM-412.
    District Court of Appeal of Florida, First District.
    July 27, 1982.
    Rehearing Denied Sept. 1, 1982.

      John McMath, Miami, for appellants.
    Jerold Feuer, Miami, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The carrier appeals from deputy commissioner Trask’s compensation order entered April 2, 1982, awarding claimant temporary total disability benefits to November 11, 1981, found to be the date of maximum medical improvement, permanent total disability benefits thereafter, and future medical treatment in the form of psychotherapy. Claimant suffers from organic brain damage and permanent psychiatric impairment as a result of an industrial injury arising out of and in the course of his employment.

This Court previously affirmed without opinion the deputy’s earlier order, July 17, 1981, determining compensability, awarding temporary benefits, and finding bad faith in the carrier’s handling of the claim. Accoa Corp. v. Bird, 411 So.2d 385 (Fla. 1st DCA 1981).

The carrier’s sole complaint about the deputy’s April 1982 order is that the finding of maximum medical improvement is without support in the record. This argument has no merit. Claimant’s treating physician testified to that effect explicitly. That claimant’s psychiatric condition has since worsened, and still worsens, which treatment may yet stabilize or moderate, is not inconsistent with a finding that claimant earlier achieved as much medical improvement as can be expected. The deputy as factfinder was surely authorized to accept the treating physician’s testimony, preferring it over the possibly contrary testimony of another medical witness who saw claimant once, thought he had not maximally improved, and was unable from his examination to formulate a prognosis.

During this appeal, on motion, we recognized continuing jurisdiction in the deputy to assess the amount of the fee to be paid by the carrier to claimant’s counsel in consequence of the bad faith finding. We also authorized the parties to bring any issue pertaining to the fee award promptly to the Court’s attention, through supplemental briefs, so that all mature issues could be decided at that time. On May 28, 1982, the deputy using the statutory schedule, section 440.34(1), set that fee at $77,400, based on evidence fixing the amount of past and discounted future benefits achieved by counsel’s representation. Section 440.34(1). The carrier complains that the amount of future medical benefits are too speculative to be taken account of in the fee, and that the deputy used an inappropriate discount rate in presently evaluating future benefits. But the carrier offered nothing to the deputy about discount rates, see Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982), and at any rate neither contention has merit. The fee awarded appears on the evidence to be properly assessed.

In affirming both orders of the deputy we also assess an appropriate attorney’s fee, payable by the carrier to claimant’s counsel. Section 440.34(5) provides:

(5) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which shall be paid as the court may direct.

It thus appears that section 440.34(5) stands independently of section 440.34(3), which governs the deputies and limits their assessment of carrier-paid fees to certain situations, including instances of bad faith claim handling by carriers. Though the deputies accordingly are limited in their assessment of fees “not to be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing,” section 440.-34(3), this Court is not so limited. We are authorized in the exercise of sound discretion to direct that an additional fee for appellate services “be paid as the court may direct.”

We direct that the additional fee to be awarded in this case shall be paid from the carrier’s profits, that is, that it “shall not be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing.” We do this on two grounds: first, to insure that the deterrent effect of a deputy’s fee award, based on bad faith findings which are unchallenged or are otherwise proper, will not be dissipated by the carrier financing an unsuccessful appeal through its insured’s insurance premiums; and second, because the grounds for this appeal are wholly without merit.

The deputy’s orders are AFFIRMED. An additional fee is awarded claimant’s counsel, to be paid by the carrier as directed, in the amount of $5,000.

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


author: GLICKSTEIN, Judge.

text:
    Banks Dixon THOMAS, Appellant, v. Patricia J. THOMAS, Appellee.
    No. 81-759.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Sept. 7, 1982.
    Robert E. Dubow of Dubow & Thomas, Dania, for appellant.
    John B. DiChiara of DiGuilian, Spellacy & DiChiara, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is an appeal by the husband from a final judgment of dissolution of marriage. We affirm in part and reverse in part.

The parties were married in 1958 and have three children, two of whom are minors. A son, age fourteen, and a daughter, age ten, reside with appellee in the former marital residence.

During the first fifteen years of the marriage, appellant worked for an insurance company in Jacksonville. Appellee, with two years of college and no vocational training, was a homemaker. Sometime around 1972 appellant went to law school, and appellee, during her husband’s three years of study, worked to help support the family, holding a full-time job as a teacher’s aide and several part-time positions in the summer. The family also used the savings accumulated over the years to subsidize its income.

Upon appellant’s graduation he took a position with a Dania law firm. The family moved and appellee went to work at Sears on a part-time basis. From the salary she earned as a sales lady, she gave appellant $80 a month for two years to help him repay the loan he used to finance his education.

At the time of the final hearing the parties owned the marital home, valued at $55,000, as tenants by the entirety, and some capital stock valued at $3,000.00. Appellant was an associate, not a partner, in a two-man firm. We consider his status significant.

As an associate appellant had a gross yearly income of $33,000. His hospitalization insurance was being paid by the firm. His net monthly income was $2,065.22. Ap-pellee was earning $3.80 per hour and working approximately twenty to twenty-five hours a week. Her net monthly wage was approximately $437, but she was also receiving approximately $29.57 as a result of her contribution to a profit-sharing plan.

The trial court awarded appellee (a) $1,200 a month for alimony and child support, $400 of which is for the support of each child until he or she is emancipated or turns eighteen, and $400 of which is for permanent, periodic alimony until such time as the younger child turns eighteen or is otherwise emancipated, at which time ap-pellee will receive $200 monthly; (b) appellant’s half interest in the former marital residence; and (c) attorney’s fees in the amount of $4,000.

Appellant contends the trial court abused its discretion in awarding appellee $1,200 per month, or fifty-eight percent of his net income, in alimony and child support. We agree and are compelled to reduce the child support $50 per month per child in order to insure appellant’s economic survival. After the reduction, he is left, after payment of his rent and the loan upon his automobile, with $330 per month to pay his other necessities. Nevertheless, we believe appellee’s needs and those of the children also must be satisfied; thus, in the event appellant’s benefits, direct or indirect, increase, the issue should be revisited. Moreover, appellee should not consider the courthouse door closed to her when the younger child no longer receives support.

Appellant argues next that the trial court erred in awarding his equity in the marital residence to appellee. The house, valued at approximately $55,000, had a $26,-000 mortgage on it. The final judgment expressly recites that the award was made pursuant to the principles of equitable distribution expressed in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We believe the trial judge acted properly in providing appellee with the security of a home. Vanderslice v. Vanderslice, 396 So.2d 1185 (Fla. 4th DCA 1981). The dissolution has placed the parties in terribly disparate positions in terms of the future. Having made appellant’s education possible by her own efforts, appellee looks to an uncertain tomorrow. Appellant, while his membership card in The Florida Bar is not a pass to riches, has the opportunity, by virtue of that membership, to prosper.

Appellant’s final point is two-fold; namely, that the trial court erred in awarding attorney’s fees to appellee and that the award of $4,000 was excessive. We disagree with the first argument but agree with the latter. Appellee made an agreement with her attorney that he would receive compensation at the rate of $100 per hour. The affidavit for attorney’s fees her lawyer submitted reflects the lawyer spent 28.40 hours in rendering legal assistance; his associate, whose time was billed at $75 per hour, expended 6.10 hours. As part of the agreement, appellee paid her attorney a $500 retainer fee. Relying upon the terms of this contract, we hold the total award of attorney’s fees should not have exceeded $3,297.50. On remand the trial court is directed to reduce it accordingly.

In summary, we affirm in part, reverse in part and remand with the foregoing direction.

HURLEY and DELL, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Nancy Jean COLLINS a/k/a Nancy Jean Payer, Appellant, v. STATE of Florida, Appellee.
    No. 81-2001.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Sept. 8, 1982.
    Richard L. Jorandby, Public Defender, Margaret Good and Steve Benedict, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. The jury instruction to which appellant objected at trial was harmless error under Sections 59.041 and 924.33, Florida Statutes (1981). The state’s proof of the weight or quantity of controlled substance, the delivery of which was the basis of the charge against appellant, was sufficient to justify denial of appellant’s Motion for directed verdict. See Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982).

HERSEY, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Although the evidence against the appellant, including her own testimony, was heavily balanced against her, I simply cannot conclude that the trial court’s error was harmless beyond a reasonable doubt.

The appellant’s only defense was that of entrapment, instructions on which were given to the jury. Under her theory she was entrapped by an agent of the police into delivering a quantity of quaalude tablets which had been left by accident at her home by a former occupant. The police agent, the chief prosecution witness at trial, was the boyfriend of appellant’s daughter and had sold a portion of the tablets in an earlier transaction. When the boyfriend was arrested he agreed to cooperate with the police to secure appellant’s arrest. At the request of the police the boyfriend called appellant and induced her to deliver to him more quaaludes. When she arrived and delivered the quaaludes to the boyfriend’s “associate” she was arrested and charged with the offense for which she now stands sentenced to the minimum mandatory term the boyfriend would have been subject to but for his cooperation.

At trial, over appellant’s objection the trial court granted the state’s request to instruct the jurors that they should not consider the fact that the boyfriend had received lenient treatment in determining the guilt or innocence of the appellant. I think this instruction was patently erroneous and in fact contrary to Section 2.04 of the Florida Standard Jury Instructions in Criminal Cases, Second Edition (1981) which provides that the jury should consider any preferred treatment received by a witness in determining his credibility. The instruction also conflicts with Section 2.04(b) which provides that the testimony of an accomplice should be received with great caution. While of course it is possible that the error was harmless, I cannot conclude with certitude that the jurors, who also were advised that appellant would be subject to a mandatory minimum sentence if convicted of the highest offense charged, may not have found appellant guilty of some lesser offense such as possession, if not told to ignore the fact that the chief prosecution witness had received lenient treatment by the state. Fulton v. State, 335 So.2d 280, 285 (Fla.1976).


author: WENTWORTH, Judge.

text:
    Donald LEWIS a/k/a Donald Morris Rowell, Appellant, v. Eddie BOONE, as Sheriff of Leon County, Florida, Appellee.
    No. AH-168.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Rehearing Denied Sept. 1, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

The appellant/petitioner appeals the circuit court’s denial of his petition for writ of habeas corpus asserting detention in violation of § 941.14 et seq., Florida Statutes. We affirm.

Petitioner was arrested on .August 13, 1981, pursuant to the cited statute. On September 15, 1981, thirty two days after his initial arrest, he was served with a governor’s warrant ordering his extradition to Nevada. At the hearing on the petition his attorney argued that the detention for more than thirty days, without recommitment, was illegal and that he was therefore entitled to immediate release. In rebuttal the state attorney introduced the requisition warrant and the governor’s warrant as evidence of petitioner’s lawful confinement. The trial court found that the warrants of extradition were facially proper and denied the petition.

Section 941.14 requires an accused to be promptly brought before a judge or magistrate, who may commit him for a period up to thirty days. That detention permits time for the procedures required for production of a governor’s warrant. If the prisoner is not arrested under the governor’s warrant within thirty days, he may be recommitted for up to sixty more days. § 941.17, Florida Statutes (1981). Since appellant was neither arrested within thirty days nor recommitted under § 941.17, he contends he is unlawfully confined and entitled to immediate release.

This appears to be a case of first impression in Florida, although we find some guidance in State v. Fulkerson, 300 So.2d 276 (Fla. 2d DCA 1974). In Fulkerson, the defendant had escaped from jail four days after he was served with an untimely governor’s warrant. As a defense to the escape charge, Fulkerson argued that because he was held beyond the thirty-day limit in § 941.15, and was not recommitted under § 941.17, he was not in lawful custody at the time of the escape. The court rejected this argument, finding that once the governor’s warrant had been served he was dearly in lawful confinement, which mooted the question of whether escape charges would otherwise be proper.

Other states have considered more particularly the issue raised by this case; i.e., whether a prisoner is entitled to habeas corpus relief when his arrest under the governor’s warrant is untimely. Although there is some support for appellant’s position, we find that the greater weight of authority more logically holds that upon substantial compliance with the Uniform Interstate Extradition Act, when the prisoner has in fact been arrested under the governor’s warrant prior to the habeas proceedings, he is not entitled to relief. See Cohen v. Warden, 252 F.Supp. 666 (D.Md.1966); Quaekenbush v. Fairchild, 291 Pa.Super. 358, 435 A.2d 1266 (1981); Quackenbush v. Fairchild, 291 Pa.Super. 209, 435 A.2d 872 (1981); Stynchcombe v. Whitley, 240 Ga. 776, 242 S.E.2d 720 (1978). We therefore conclude accordingly that in the circumstances of this case the petition for habeas corpus was properly denied.

AFFIRMED.

BOOTH and WIGGINTON, JJ., concur.

      . Section 941.14 of the Uniform Interstate Extradition Act provides:
      941.14 Arrest without a warrant. — The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding 1 year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant.

      . The record on appeal does not adequately reflect the date and statutory basis of the arrest. In this court, though not in the proceedings below, the state argues that this record deficiency is fatal to appellant’s case. While we agree that the record could have been more fully compiled, we assume, as did the parties and the trial judge at the hearing, that the date and basis of appellant’s confinement are as he has represented them.

      . See Speaks v. McGregor, 355 F.Supp. 1129 (W.D.Va.1973); Commonwealth ex rel. Coffman v. Aytch, 238 Pa.Super. 584, 361 A.2d 652 (1976), both of which involve substantial governmental infractions of the Uniform Extradition Act’s time limits.


text:
    Joel B. OVERFIELD, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-5.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Rehearing Denied Sept. 1, 1982.
    Thomas D. Treece, of Bartlett, Treece & Peper, P. A., Jacksonville, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Overfield contends the Commission violated state and federal- constitutional proscriptions against ex post facto laws by applying to him a matrix time range for parole release set by the rule in effect at the time of setting his presumptive parole release date rather than by the rule in effect when his crime occurred. We affirm.

Without extended discussion of whether amendments to the matrix rule constitute procedural changes not subject to ex post facto considerations, or are substantive changes, we cannot agree that such amendments necessarily increase punishment and are, therefore, illegal. The matrix time range does not automatically determine time served, and the Commission in its discretion may aggravate or mitigate the matrix time, setting a release date above or below the matrix, so long as it states its reasons with particularity. Secs. 947.-172(2), .165(1), Fla.Stat. (1981). See also Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982). This process is to be contrasted with that addressed in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), where statutory changes in gain-time credits automatically reduced, without discretionary decision-making, the time to be served.

The Commission’s order establishing Overfield’s presumptive parole release date is accordingly AFFIRMED.

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


author: PER CURIAM. ROBERT P. SMITH, Jr., Chief Judge,

text:
    HOLIDAY CARE CENTER, Peninsular Fire Insurance Company and Corporate Group Service, Inc., Appellants, v. Mary SCRIVEN and Department of Labor and Employment Security, Appellees.
    No. AH-167.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1982.
    Rehearing Denied Sept. 8, 1982.

      Joseph E. Smith of Miller & Cooper, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellees.
   PER CURIAM.

By this appeal the self-insured employer complains of the deputy commissioner’s order awarding claimant temporary total disability benefits amounting to less than $350, finding that the employer refused voluntary payment of those benefits in bad faith, and reserving jurisdiction to award an attorney’s fee. The benefits awarded were to cover the 27-day period from March 10, 1981, when claimant’s orthopedic doctor advised her that she might return to work, albeit with “some occasional back and leg pain,” and April 6, 1981, when claimant found new employment, her old job having long since been filled after her injury in November 1980. At the March 10 office visit, the doctor instructed claimant to return on April 21 for another examination, which she did, and on June 12 the doctor found she had reached maximum medical improvement by full recovery without permanent disability. But as of March 10 previously, the self-insured employer, through its servicing agent, had unilaterally terminated temporary total disability benefits upon receiving the doctor’s report of his examination and advice to claimant on that day.

Thus we are concerned, before reaching the bad faith issue, with defining the employer’s duty to continue paying benefits, previously paid over a period of months for an admitted temporary total disability due to a compensable accident, when the employer learns through the usual course of reporting that the treating physician has advised the injured worker, not yet at maximum medical improvement, to return to work. The question is this: When the injured worker has recovered the ability to work and is searching for work, but has not yet found gainful work, and is not yet at maximum medical improvement, is the worker entitled either to continue temporary total disability benefits as here ordered by the deputy, calculated as the designated percentage of the prior average weekly wage, section 440.15(2), Florida Statutes (1980 Supp.), or to temporary partial disability benefits calculated as another percentage of the difference between the prior average weekly wage and “the salary, wages, and other remuneration the employee is able to earn . . . ”? Sec. 440.15(4).

We hold that such a worker, being able to work, is not entitled to continuing temporary total disability benefits, but that she is entitled to temporary partial disability benefits during her conscientious search for work in the service of the former employer and elsewhere, until the employee reaches maximum medical improvement.

When this injured and disabled member of the labor force was medically advised on March 10, 1981, to return to work, and there was no other evidence that she could not then gainfully work, she was no longer totally disabled and unable, in any anatomic sense, to work. For that reason temporary total disability benefits were no longer payable. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982); Sanford Nursing & Convalescent Center v. Lowery, 405 So.2d 280 (Fla. 1st DCA 1981); see also (applying pre-1979 law) Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). Thus the Court declared through Judge Shivers only recently:

[I]t was improper to have awarded TTD benefits from the date of the accident until such time as claimant reaches MMI. An injured claimant can be less than totally disabled without having reached MMI. (Citation omitted.) The capacity to return to work is the critical issue in determination of TTD. Thus, although claimant was TTD at the time of the award, he may regain, at least partially, his ability to return to work before he reaches MMI. Accordingly, we affirm the award of TTD benefits but amend the order to reflect that such benefits shall continue until claimant reaches MMI or is able to return to work. (Citations omitted; emphasis in original.)

Willard Kaufman Co. v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982).

But it does not necessarily follow from this worker’s recovery of physical ability to work that she also miraculously recovered, by virtue of the doctor’s pronouncement, an immediate ability to earn from work the same “salary, wages, and other remuneration” she earlier lost by this industrial accident. At that point she was a worker without a job, still short of maximum medical improvement, still injured and recovering, and in that condition still partially disabled both physically and economically due to “personal injury ... by accident arising out of and in the course of employment.” Sec. 440.02(6).

The work search is inextricably involved in the worker’s entitlement to commensurate benefits for the continued disability thus defined; the search is involved also in the employer or carrier’s obligation to pay those benefits; and it is involved in our recognition of that entitlement and obligation. To search for work conscientiously and effectively is the chapter 440 obligation of any injured and unemployed worker not physically disabled to work. That is the clear mandate of this Court’s cited decisions refusing to excuse a worker’s failure to search, or his inadequate search, due to subjective but medically unverifiable claims of inability to work or to search. Yet just as the work search is the linchpin of any effort to return to gainful work from a condition disabling work, and is therefore the predicate for any claim based on continued disability to work as gainfully as before, in the case of one still recovering from an industrial injury the search for work must also be recognized as both (1) an economically significant consequence of the compensable injury and (2) an enterprise qualitatively affected by the residue of injury.

The first point is self-evident: simply being able to work and to search for work is not economically equivalent to new gainful employment. Thus the compensa-ble injury continues temporarily to manifest itself, until maximum medical improvement, in a form of partial disability for which section 440.15(4)(a) requires commensurate compensation “based on actual wage loss.” The second point is perhaps more problematic from an evidentiary standpoint: though it may be so, one cannot always hope to prove that, putting it in the terms of this case, the worker’s “occasional back and leg pain” troubled her search. But that inference reasonably attends one who only just recovered the ability to work and is not yet as vigorous as she will be; and to deny that inference because we cannot measure it slices the human condition too abstractly and far too finely.

In Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982), the Court ordered continuing wage loss benefits for permanent disability though “her wage loss during this period of time was not solely due to her compensable injury,” and the wage loss was caused also by claimant’s need to care for her ill husband. Here, in the same way and perhaps for stronger reasons pertinent to temporary benefits, see Sanford Nursing & Convalescent Center, supra, 405 So.2d at 282-83 (Ervin, J., dissenting), this worker’s temporary wage loss, sustained while still recovering and searching satisfactorily for work to assuage that loss, is not any the less a consequence of her continuing injury because job scarcity contributed also. She was therefore entitled, beginning March 10, 1981, to commensurate benefits for temporary partial disability. Sec. 440.15(4).

Commensurate compensation for temporary partial disability to earn is as specified in section 440.15(4):

95 percent of the difference between 85 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn, as compared on a weekly basis; however, the weekly wage-loss benefits shall not exceed an amount equal to 66% percent of the employee’s average weekly wage at the time of injury.

One dollar factor in the formula, the worker’s average weekly wage at the time of injury, is of course known; the other, the amount “the employee is able to earn,” is zero at the beginning of the period of conscientious work search, here March 11,1981. The latter factor will rise to a particular dollar amount if during the search, still before maximum medical improvement, the worker declines an employment opportunity at that particular rate of pay in order to continue seeking more gainful work or for other reasons. And if at any time the employer or carrier rightly perceives that the worker’s search is not conscientious, the worker’s entitlement to temporary partial disability compensation on this basis ceases.

The centrality of a work search to the issue at hand thus reappears with new force. The character and progress of the search is the employer’s or carrier’s business as well as the worker’s. No longer will the employer or carrier abruptly terminate all benefits upon receiving a doctor’s report releasing a still-healing worker to work. The obligation to pay benefits is transformed from total to partial benefits, as stated, but the obligation to pay benefits continues and, in the employer’s or carrier’s own interests, will be monitored by contact with the searching worker. 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). There the Court disapproved a carrier’s “passive disapproval and rejection of claims on mere technical matters of form,” and its “delay or denial of payment, without a showing of active effort and initiative ... to fairly and expeditiously determine its obligation to place needed benefits in the hands of the injured worker.”

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. And the recovering worker who looks for employment — ordinarily including the old employer in the work search — serves her interests both in reemployment and in displaying a conscientious search. Conversely, one who does not look for work she is physically able to perform risks not only the postponement of gainful employment but also her continuing entitlement to wage loss benefits during a conscientious search.

In this case the deputy found on substantial competent evidence that the worker conscientiously searched for work for 27 days after she was released to do so by her doctor and before finding gainful work. A longer period of searching would, quite obviously, present a more difficult problem for evaluation. The deputies will carefully evaluate those more difficult problems when they arise in cases of more extended search periods. The burden of proof remains on the claimant to prove, in respect to any benefits the employer or carrier refuses to pay, all elements of claimant’s entitlement to wage loss benefits in the circumstances we have addressed. Sec. 440.15(4)(b). In this case the deputy’s award of disability benefits was erroneous only in designating them total disability benefits; the amount, limited to 66⅔ of claimant’s average weekly wage, is correct. Jack Eckerd Corp. v. Coker, 411 So.2d 1026 (Fla. 1st DCA 1982).

That we here reach the same monetary result as if we had affirmed the deputy’s award of continuing temporary total disability benefits is, we trust, neither sophistry nor necessarily a retreat from the first-cited decisions of this Court denying temporary total disability benefits when the unemployed claimant was able to work and could not find work, due apparently to the unavailability of work. E.g., Sanford Nursing & Convalescent Center, supra, 405 So.2d at 281. But see Fellows, Read & Weber v. Lance, 406 So.2d 1286 (Fla. 1st DCA 1981). We but recognize that there are significant doctrinal and practical differences between total disability and partial disability, chief among those being the ability to work; we recognize that the ability to work is not equivalent to reemployment especially in one whose job has been filled since her totally disabling injury on the job, and who has not yet achieved a maximum recovery; and subject to attentive monitoring of the work search, see Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), we place the economic burden of the recovery period where it belongs, on the employer and carrier.

We sustain also the deputy’s finding that the employer’s servicing agent acted in bad faith in abruptly terminating all benefits upon learning that this injured worker had been medically declared able to work though she had not yet reached maximum medical improvement. On substantial competent evidence the deputy found:

The issue of the claimant’s attorney’s entitlement to an attorney’s fee based upon bad faith on the part of the employer/self-insured was also heard before the undersigned Deputy Commissioner. I find that the employer/self-insured had in fact acted in bad faith in the handling of this claimant’s claim, in that they had terminated claimant’s benefits as of March 11, 1981, and were aware when they took the claimant’s deposition on June 3, 1981, that she had not returned to work until April 6, 1981, and continued under the care and treatment of Dr. Stose, who had furnished the employer/self-insured with copies of his reports. I therefore find that the claimant’s attorney is entitled to a reasonable attorney’s fee for his services herein, to be paid by the employer/self-insured.

Knowing from the doctor’s March 10 report that the worker was still under the doctor’s care for “occasional back and leg pain” and was to return on April 21 for further medical care, knowing that the worker was then both unemployed and still to achieve maximum medical improvement, knowing when the doctor reported on April 21 that the worker was still experiencing pain as well as “minimal paravertebral muscle spasm,” for which the doctor prescribed a' drug, the employer terminated temporary total disability benefits and did nothing to assist the worker in initiating a claim for temporary partial disability benefits. The carrier was on notice during that period that, though total disability benefits were no longer due, the worker might be entitled to partial disability benefits. Compare Farm Stores v. Dyrda, 384 So.2d 269, 270 (Fla. 1st DCA 1980), in which we said:

[I]t is difficult to imagine that the carrier would not be on notice that the denial of claimed temporary total disability benefits might well result in an award of temporary partial where there is a gap between the cessation of temporary total disability and the date of maximum medical improvement.

In these circumstances the employer’s duty was at the very minimum to provide the still healing and still unemployed worker with forms for use in furnishing information pertinent to possible temporary partial disability benefits. Fla.Admin.Code R. 38F-3.19. Later, on May 1, 1981, the worker through her attorney filed a claim for both temporary total disability benefits and “wage loss benefits,” which further alerted the employer, who already should have known, that the worker was not immediately employed in her condition of less than maximum medical improvement. When the employer deposed claimant on June 3, 1981, the employer learned that the worker had gained reemployment on April 6. At that time the employer knew that its maximum exposure for the payment of continuing temporary disability benefits was something like $350. On principle the employer resisted paying those benefits and was ordered to pay them by the deputy.

Then on principle the employer further contested its $350 liability by appeal to this Court. Though we have found that the employer’s liability was tagged by the deputy with the wrong label, the employer was liable in principle and in fact. When we consider the amount involved, the worker’s continuing disability and unemployment during the 27 days in question, and the employer’s cumulative and persistent stonewalling approach to its chapter 440 obligations, we cannot find the deputy erred in assessing an attorney’s fee for having acted “in bad faith with regard to handling an injured worker’s claim,” resulting in an injured worker suffering economic loss. Sec. 440.34(3)(b), (5).

This Court has a responsibility, as do the deputies, to hold employers and carriers to the high standards imposed on them by chapter 440 as interpreted in Florida Erection Services, and we must therefore take account, on appeal as well as at the moment of the deputy’s hearing and order, of “delay or denial of payment, without a showing of active effort and initiative . . . to fairly and expeditiously determine [the employer’s or carrier’s] obligation to place needed benefits in the hands of the injured worker.” Id., 395 So.2d at 211. This affirmative obligation does not terminate when the employer or carrier initially denies or terminates benefits, nor when the matter takes on adversarial characteristics, before the deputy, nor when the employer or carrier contemplates and prosecutes an appeal. The obligation continues, and the “delay or denial” of benefits during the several additional months necessary for an appeal becomes a factor in determining whether the appellant has fairly and expeditiously determined its obligation to place needed benefits in the hands of the injured worker, or whether it has instead acted recklessly in handling the claim. That is the necessary effect of section 440.34(5), which is juxtaposed to the statutory criteria for awarding fees when “a carrier has acted in bad faith with regard to handling an injured worker’s claim and the injured worker has suffered economic loss.” Section 440.34(5) provides:

If any proceedings are had for review of any claim, award, or compensation order before any court, the court may allow or increase the attorney’s fees, in its discretion, which shall be paid as the court may direct.

We acknowledge that it is difficult to establish a general rule applicable to all cases as to the length of delay that should be considered in determining the question of bad faith. Undoubtedly that issue can only be decided on a case-by-case basis, and the reasons for the delay must be closely scrutinized. We are nevertheless satisfied, however, on the record before us that there is competent and substantial evidence supporting the deputy’s determination.

In accordance with section 440.-34(5), we grant claimant’s motion for an appellate attorney’s fee, we assess the fee at $3,000 based on the documentation furnished after oral argument, and we direct that this fee, like the fee to be awarded by the deputy on remand, “not be recouped, directly or indirectly, by any carrier [or group self-insurer, section 440.02(7) ] in the rate base, the premium or any rate filing.” Sec. 440.34(3).

As modified to characterize the award as one for temporary partial disability wage loss benefits, the deputy’s order is AFFIRMED.

ERVIN and SHAW, JJ., concur.

ROBERT P. SMITH, Jr., C. J., concurring and dissenting.

ROBERT P. SMITH, Jr., Chief Judge,

concurring and dissenting.

I wholly agree with the Court that Seri-ven is entitled to temporary partial disability benefits, amounting to about $350, for the 27-day period in which she had neither attained maximum medical improvement nor secured employment despite a conscientious search. If I thought the record evidence supported the deputy’s finding of carrier bad faith in withholding initiatives required of it under chapter 440, I would also agree, for the reasons stated by the Court, that the deputy’s award of attorney fees should be sustained under section 440.-34(3)(b). In such a case, this Court should ordinarily add a further fee, not recoverable through the carrier’s rate base, to give full deterrent effect to the deputy’s assessment of a nonrecoverable fee for carrier bad faith in handling the claim. Alternatively an appellate fee, paid in the manner directed by the Court, is justified to deter carrier appeals that are wholly without merit. That is the case here, for the carrier’s appeal on the $350 issue is but an inconsequential struggle over labels. I note, as does the Court, that section 440.34(5) does not require a finding of bad faith in a carrier’s appeal as a predicate for awarding fees not recoverable through the rate base; to deter wholly groundless carrier appeals it is necessary that the Court employ this economic disincentive.

I regret that I cannot agree, however, that the record evidence supports the deputy’s characterizations, and the Court’s, of the carrier’s conduct between March 10, 1981, and May 1, when Scriven’s counsel filed this claim. The record is simply silent on what the carrier’s representative did and did not do during that critical period. Adversary arguments based on little or no evidence, other than a few scraps of medical paper in the file and the claimant’s testimony on other subjects, is an unfortunate characteristic of much of the workers’ compensation litigation that now pours unrelentingly into this Court. I would stem that flow by insisting that adversary lawyers produce evidence on which the deputy can decide the issues laid before them, so that we in turn can justifiably accord to the deputy’s order the presumption of correctness that this “self-administered” compensation system especially deserves and requires.

       From the manner in which counsel have presented this appeal we do not know whether Holiday Care Center is self-insured, assisted by a servicing agent, or is insured by Peninsular Fire Insurance Company. In any case the term “carrier” is all-encompassing, section 440.-02(7)(a), though there is some difficulty in speaking of a self-insured as a “carrier” for purposes of section 440.34(3), which directs that attorney fees assessed for carrier bad faith “shall not be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing.” Assessing such a fee against a self-insured has the same result, however: it is paid from profits.


text:
    Howard T. OISHI, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AL-459.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1982.
    Howard T. Oishi, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for respondent.
   PER CURIAM.

Petitioner, an inmate in the custody of the Department of Corrections, brings this petition for writ of mandamus to compel the Florida Parole and Probation Commission to comply with its statutory duty by interviewing him and establishing a presumptive parole release date. We grant the petition and order the Commission to establish a PPRD for petitioner and to notify petitioner and this Court of its action within 15 days of the date of this order.

Oishi has been confined in execution of a three year sentence since August 26, 1981. Section 947.16(1), Fla.Stat. (1981), requires the Commission to grant parole interviews to prisoners having sentences of five years or less within six months of confinement in execution of judgment. Therefore, petitioner should have been interviewed by the end of February, 1982. He petitioned this Court for relief in May, 1982. On May 26, 1982, we issued an order to show cause, returnable within 15 days, why the Commission had not interviewed petitioner and had not established a PPRD, as required by the Objective Parole Guidelines Act. However, no response from the Commission was forthcoming. So on June 25, 1982, this Court issued the following order:

TO: Malcolm S. Greenfield
1309 Winewood Blvd.
Bldg. 6
Tallahassee, Fla. 32301
Pursuant to Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 1978), you are directed to show cause in writing within ten (10) days from the date of this order why you should not be held in contempt or have other sanctions imposed for your failure to comply with the Florida Rules of Appellate Procedure and this Court’s order issued May 26, 1982.
Counsel’s filing of a response addressing the merits of this case, within ten (10) days, will cause this Court to recede from the above order.

On June 30, 1982, counsel for the Commission responded to the merits of the allegations in the petition, admitting that petitioner had not been interviewed, nor had a PPRD been established. Respondent, however, requested that

the Court hold in abeyance any action on the petition for writ of mandamus until such time as Respondent can receive and properly docket for Commission action the results of the initial interview scheduled for the month of June, 1982, but such date for Commission action not to exceed July 14, 1982, and notice to the Court and Mr. Oishi not to exceed July 19, 1982.

In reliance upon the representations of counsel for the Commission, we decided to refrain from taking any action on the petition until consideration of the July 19, 1982, notice to the Court. However, counsel for the Commission did not notify the Court, nor did he notify petitioner, as is evidenced by petitioner’s motion for issuance of the writ filed here on July 28, 1982. We now grant the petition; however, as we believe the Commission will comply with this decision, we withhold issuance of the writ at this time.

Furthermore, we order counsel for the Commission to show cause within 10 days why he should not be held in contempt for his failure to comply with this Court’s first show cause order and his representation to the Court that he would notify the Court and petitioner by July 19, 1982, of action taken by the Commission. We note that in many appeals of Commission action, counsel for the Commission has been grossly negligent in serving the indexes and records, as well as answer briefs, but that this Court has repeatedly denied motions for sanctions and motions to strike the answer brief. These motions were ultimately denied because striking the answer brief only places an undue burden upon this Court to do the work of the Commission’s advocate. We give notice that the Court will no longer tolerate such casual disrespect for the processes of this Court.

ROBERT P. SMITH, C. J„ and LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Additionally, Fla.Admin.Code Rule 23-21.-05(2) requires the Commission to schedule inmates with sentences of five years or less for initial interviews by the end of the fifth month of their confinement. See also, Hayes v. FPPC, 414 So.2d 648 (Fla. 1st DCA 1982): Greer v.
        FPPC, 403 So.2d 1000 (Fla. 1st DCA 1981); James v. FPPC, 395 So.2d 197 (Fla. 1st DCA 1981); and Battis v. FPPC, 386 So.2d 295 (Fla. 1st DCA 1980).

      . On this same day, we issued similar orders in the following cases: Matsen v. FPPC, Case No. AK-451; McKee v. FPPC, Case Nos. AL-168 and AK-456; Hawkins v. FPPC, Case No. AK-150.

      . Petitioner Oishi indicates that he was interviewed on June 26, 1982, and a PPRD was recommended by the hearing examiner panel.

      . E.g., Arlotta v. FPPC, Case No. AJ-416; Kline v. FPPC, Case No. AL-415; Dean v. FPPC, AH-91; and Williams v. FPPC, Case No. AH-438.


author: NESBITT, Judge.

text:
    Thomas E. HAYS, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 80-410.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 1, 1982.
    Levine & Green and Bruce David Green, Fort Lauderdale, for appellant.
    David M. Maloney, Tallahassee, for appel-lee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Hays appeals from an order by the Division of Pari-Mutuel Wagering (Division) entered on February 20, 1980 declaring him ineligible for licensing in any further capacity and imposing a $200 fine.

The order appealed from arose out of the following factual situation. On November 21, 1978, “Gently Noble,” a thoroughbred racehorse owned by Hays won the first place in a race at Calder Race Course and received the purse of $4,500. Subsequently, it was determined that the horse had raced with the narcotic “fentanyl” in its system. On August 7, 1979, an order was issued by the Division requiring Hays to return the purse monies in accordance with the provisions of Florida Administrative Code Rule 7E-1.06(13) [purse redistribution rule]. The order allowed him forty-five days to comply, which Hays failed to do.

As a result of Hays’ noncompliance, the Stewards issued a ruling finding Hays in violation of Rule 7E-1.06(13), suspended his license, and referred the case to the Division with a recommendation that Hays’ license be revoked. By order of February 20, 1980, the Division found Hays in violation of Rule 7E-1.06(13) and the order of August 7, 1979, in which he was allowed forty-five days to return the purse monies. He was declared ineligible for licensing and a $200 fine was imposed.

The question presented is whether the Division has the legislative authority to enter the order of February 20, 1980 revoking Hays’ license and imposing a $200 fine.

The Division points to Section 550.-10(4)(b), Florida Statutes (1979), as the statutory authorization for declaring Hays ineligible for licensing in any further capacity. That statute provides:

The Division of Pari-Mutuel Wagering may deny or revoke any license where the holder thereof has violated the rules and regulations of the division governing the conduct of persons connected with the racetracks.

Hays’ response is that this statute does not empower the Division to declare him ineligible for licensing for violation of an order. We agree. However, Hays concedes that his license was also revoked for violation of the purse redistribution rule, but contends that the unconstitutionality of the underlying rule precludes the application of Section 550.10(4)(b), supra.

Since it is undisputed that Hays did not seek review of the August 7, 1979 order at any time prior to this appeal, the issue is whether that order is res judicata of the question of the constitutionality of the purse redistribution rule. We answer in the affirmative.

The doctrine of administrative res judicata is firmly entrenched in Florida. Coral Reef Nurseries, Inc. v. Babcock Company, 410 So.2d 648 (Fla. 3d DCA 1982); Rubin v. Sanford, 168 So.2d 774 (Fla. 3d DCA 1964), cert. denied, 180 So.2d 331 (Fla.1965). While it is true that an administrative agency lacks jurisdiction to consider the constitutionality of its own action, Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), there was no impediment to Hays in filing a petition for review with this court pursuant to Section 120.68, Florida Statutes (1979); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). All constitutional issues (including due process) which may have been raised on direct appeal are res judicata in a collateral attack unless those issues relate to the jurisdiction of the court. See DeBusk v. Smith, 390 So.2d 327 (Fla.1980); 2 Davis, Administrative Law Treatise § 18.-10 (1958 & Supp.1970); 2 Am.Jur.2d Administrative Law § 493 (1962); 33 Fla.Jur.2d Judgments and Decrees §§ 317, 322 (1982). The Division had subject matter jurisdiction over the cause and, therefore, Hays is now precluded from collaterally attacking the constitutionality of the purse redistribution rule. Because we have determined that Hays is barred from raising this constitutional issue, we have no difficulty in concluding that the Division acted within its legislative authority in revoking Hays’ license for violation of the purse redistribution rule.

That portion of the February 20, 1980 order attempting to fine Hays $200 stands on a different footing. Unlike the licensing penalty for which the Division properly pointed to Section 550.10(4)(b), supra, as the legislative authorization, the imposition of the $200 fine is not authorized under any legislative provision. We have recently decided this issue, in McFarlin v. State, Department oí Business Regulation, Division of Pari-Mutuel Wagering, supra. For that reason, that portion of the February 20, 1980 order which imposed a fine is reversed.

Affirmed in part, reversed in part.

      . Hays argues that the purse redistribution rule is unconstitutional in that it requires a forfeiture without any general legislative authority as required by Article I, Section 18 of the Declaration of Rights of the Florida Constitution. See McFarlin v. State Department of Business Regulation, Division of Pari-Mutuel Wagering, 405 So.2d 255 (Fla. 3d DCA 1981).