author: WENTWORTH, Judge.

text:
    DURO PAPERBAG MFG. CO. & Transamerica Insurance Co., Appellants, v. Ruther GRAHAM, Appellee.
    No. AH-113.
    District Court of Appeal of Florida, First District.
    June 16, 1982.

      Richard G. Davis, of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellants.
    John A. Williamson, of Barrs, Williamson & Levens, Tampa, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order awarding claimant temporary total disability benefits. We agree with employer/carrier’s contention that the award is not supported by competent substantial evidence and reverse the order.

Claimant is a 34 year old female with a high school education and an employment history as a maid, a dietician, and in various hospital employments and “laboratory work,” as well as her factory job with the present employer. In August 1980 claimant sustained an industrial accident resulting in an injury which was diagnosed as a “mild lumbar strain”; claimant’s physician advised that she return to work but “take it easy.” Claimant returned to work for only one day and testified that she experienced disabling pain. She eventually saw other physicians, but none of these subsequent doctors imposed physical restrictions or suggested that claimant was unable to work. Claimant was deposed in February 1981, at which time she indicated that her only effort toward reemployment was to look in the newspaper for hospital work and call “a few places.” A hearing was eventually held in September 1981, at which time claimant testified that she had made no further work search or attempt at employment because she was taking medication (originally prescribed for pain caused by her industrial injury) which made her drowsy and because she felt physically incapable of gainful employment. Claimant further testified that she continues to experience pain which “comes and goes,” and that she is often limited in her household chores.

When there is no other competent evidence of total inability to work, a conscientious effort to return to work is a prerequisite for an award of temporary total disability benefits. See Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981). Although a claimant’s own testimony may, in appropriate circumstances, provide the necessary evidence of total physical or medical disability, Square G Construction Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA March 26, 1982, rehearing denied April 29, 1982), the facts above recited are not appropriate for the application of this rule. Claimant’s physician imposed no physical restrictions and recommended that she return to work, and claimant’s own testimony establishes neither total disability nor any reasonable explanation for not attempting to obtain and undertake employment to test her capability during the lengthy period in question. The adequacy of a claimant’s work search is, of course, a factual issue within the ambit of the deputy’s fact-finding authority, and his conclusion will be upheld if the record provides any competent substantial supporting evidence. In the present case, however, the deputy made no express finding as to the legal effect of claimant’s admitted failure to seek employment, stating only that the carrier “didn’t do very much in this case ... I got to award temporary total to the claimant because it just wouldn’t be fair otherwise ....”

We find that the record lacks any competent substantial evidence to support the temporary total disability award, and that the deputy erred in awarding such benefits. The circumstances would apparently require the application of § 440.-15(4)(b), Florida Statutes (1980), as to “deemed” earning ability upon a claimant’s voluntary limitation of income, and on remand the deputy should consider the applicability and effect of this provision. See Pompano Roofing Co. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA 1982).

The order appealed is reversed and the cause remanded for further proceedings consistent herewith.

BOOTH and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    Henry DEINEMA, Appellant, v. PIERPOINT CONDOMINIUMS and Insurance Company of North America, Appellees.
    No. AB-462.
    District Court of Appeal of Florida, First District.
    June 18, 1982.

      Robert H. Schott of Gamba, Junod & Schott, Palm City, for appellant.
    Harry D. Robinson, West Palm Beach, Fla., for appellees.
   ERVIN, Judge.

In this workers’ compensation action, Deinema urges four points on appeal. We reverse in part as to the first and fourth points raised, but affirm the remaining points.

Deinema first contends that the deputy erred in refusing to award wage-loss benefits from March 14, 1980, through December 4, 1980. We agree, and reverse and remand. As to this point, the record discloses that the parties stipulated that Deinema had achieved MMI in March, 1980, as to an industrial accident which occurred in September, 1979, and for which he had received TTD benefits. The date of MMI was grounded upon an examination conducted by a Dr. Greene as of that date, from which he determined that claimant had suffered no permanent disability resulting from his industrial injury. In April, 1980, Deinema filed a written claim for additional TTD benefits, and he continued to seek the unauthorized treatment of Dr. DiBartolo, which he finally obtained on December 4, 1980. It was at that time DiBar-tolo determined that Deinema had sustained a 10% permanent impairment as a result of the industrial accident. Although the deputy refused to award any wage-loss benefits that were claimed prior to December 4, 1980, he reserved jurisdiction for the purpose of awarding them after such date pending a report from a Dr. Moll as to claimant’s condition.

The deputy interpreted Section 440.-15(3)(a)2, Florida Statutes (1979), as requiring that a permanent impairment rating be in existence before December 4, 1980, as a predicate to the award of any wage-loss benefits. The deputy’s reliance on Section 440.15(3)(a)2 is misplaced. The statute clearly requires that “impairment benefits be paid within 20 days after the carrier has knowledge of the impairment.” It does not bar claimant’s entitlement to benefits that may have accrued before the carrier’s knowledge of same. Deinema was obviously unable to request impairment benefits following MMI until he was examined by Dr. DiBartolo, and he then amended his claim by later requesting them at the hearing.

The more significant question is whether the e/c was prejudiced by the untimely notice provided by the claimant. The decretal portion of the order does not discuss the significance of this failure. Nevertheless, we have held that the untimely filing of wage-loss forms does not require a denial of such benefits unless the e/c has been prejudiced because of the untimeliness. Stahl v. Mike Gordon’s Seafood Restaurant, 408 So.2d 808 (Fla. 1st DCA 1982). See also, Gall Silica Mining Co. v. Sheffield, 401 So.2d 1169 (Fla. 1st DCA 1981). The e/c makes no contention that it was prejudiced by such failure, and we find nothing in the record suggesting prejudice. At any event, on remand, the claimant should submit promptly the required wage-loss forms.

As to Point II, we agree that the deputy commissioner properly reserved jurisdiction for the purpose of awarding wage-loss benefits pending a medical report by Dr. Moll, a physician appointed by the deputy. That procedure is expressly authorized by Section 440.25(3)(b), Florida Statutes (1979), on those occasions when medical testimony at a hearing is conflicting. Here, the record clearly establishes the medical testimony was conflicting. Moreover, the deputy’s order does not reflect, as the appellant contends, that the deputy relinquished his power to decide the issue of wage-loss to Dr. Moll. Cf. Alderform Interior System v. Chavez, IRC Order 2-3062 (1976). To the contrary, the deputy’s order merely requested a third medical opinion to aid him in making his final decision.

As to Point III, we agree with the deputy’s order that Dr. DiBartolo’s rating was not in compliance with Section 440.-15(3)(a)3. See Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981). The deputy was correct in finding that, despite the inadequacy of Dr. DiBartolo’s rating, his opinion of disability created a conflict with Dr. Greene’s (see Point I). Dr. DiBartolo’s failure to apply the AMA tables rendered his evaluation incompetent only as to the amount of disability — not to the extent that some permanent disability in fact existed. Moreover, on remand, the deputy may, within his informed discretion, accept a revised medical report from Dr. DiBartolo translating his original medical finding into a new rating through the use of the AMA tables.

As to Point IV, however, we conclude that the deputy erred in refusing to order the e/c to pay for the requested evaluation and treatment of Dr. DiBartolo performed before the date of hearing on February 17, 1981. After the claimant was treated by Dr. Greene in March, 1980, he requested the care of Dr. DiBartolo. Instead, the e/c authorized three alternatives: Doctors Moll, Murphy or Stalker. The claimant reported that he would accept treatment from either Moll or DiBartolo. The e/c then authorized Dr. Fraraccio, an associate of Dr. Moll, to examine claimant. The claimant eventually became dissatisfied with Dr. Fraraccio’s treatment and again requested Dr. DiBartolo. In response to this request, the e/c reauthorized Dr. Fra-raccio. The claimant, ignoring the e/c’s action, went to Dr. DiBartolo.

The e/c’s reauthorization of Dr. Fraraccio was not, under the circumstances, in compliance with the express provisions of Section 440.13(2), Florida Statutes (1979), requiring the e/c “to select another physician to treat the injured employee” if the claimant objects to the medical treatment provided. The only statutory exception to the requirement that another physician be selected to furnish treatment is the deputy’s determination that “a change in medical attendance is not in the best interests of the injured employee .... ” Here the deputy made such a finding; yet, that pronouncement was belied by his later finding of a conflict in the medical evidence, based upon both claimant’s and DiBartolo’s testimony, that claimant had sustained a permanent impairment, causing him to appoint another physician for the purpose of determining whether claimant had suffered a permanent injury. Accordingly, the deputy should have directed the e/c to pay for the treatment furnished by DiBartolo, since the record reveals that claimant’s dissatisfaction with the e/c’s selection of physicians was for good cause. Cf. Schult Mobile Home Corp. v. Walling, 384 So.2d 251 (Fla. 1st DCA 1980).

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

McCORD and SHAW, JJ., concur.

      . The written claim made no request for wage-loss benefits, although the claimant requested them at the final hearing, conducted on February 17, 1981.

      . That section provides:
      Once the employee has reached the date of maximum medical improvement, impairment benefits are due and payable within 20 days after the carrier has knowledge of the impairment. (e.s.)

      . That section provides in material part:
      When there is a conflict in the medical evidence submitted at the hearing, the deputy commissioner may designate a disinterested doctor to submit a report or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, examined the claimant, or otherwise made such investigation as appropriate. The report or testimony of any doctor so designated by the deputy commissioner shall be made a part of the record of proceeding and shall be given the same consideration by the deputy commissioner as is accorded other medical evidence submitted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13(3)(a).


author: SHIVERS, Judge.

text:
    STATE of Florida, Appellant, v. J.H.B., a child, Appellee.
    No. AE-309.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellant.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellee.
   SHIVERS, Judge.

State appeals the trial court’s order dismissing delinquency petition. Appellant was charged in the petition with unlawfully possessing dogs (pit bulls) customarily used for taking wildlife in the Cypress Creek Wildlife Management Area during the closed hunting season in violation of Game and Fresh Water Fish Commission Rule 39-15.04(6)(a).

At issue is whether this rule is unconstitutionally void for vagueness. We conclude it is not and reverse.

Rule 39-15.04(6)(a) provides:

No person shall possess or knowingly or negligently allow any dog customarily used for taking wildlife on any part of a management area except as authorized by regulations for the particular area or under permit issued by a representative of the Commission.

Appellant moved to dismiss the petition contending the regulation violates due process. He argued the regulation is arbitrary and capricious because it does not require that the offender possess the dogs knowingly or with unlawful intent and that, consequently, the regulation punishes otherwise innocent conduct.

The trial court dismissed the petition finding Rule 39-15.04(6Xa) void for vagueness since it neither defined the type of dog prohibited from the area nor the kind of wildlife intended to be protected.

Under the due process clauses of the Fifth and Fourteenth Amendments to the Federal Constitution and Florida Constitution, a penal statute must be expressed in language that is definite enough to provide notice of what conduct would constitute a violation. State v. Ashcraft, 378 So.2d 284 (Fla.1979).

The judicial test of statutory vagueness is whether the language is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct. Sanicola v. State, 384 So.2d 152 (Fla.1980).

It is our obligation to find allegedly unconstitutionally vague statutes constitutional if application of ordinary logic and common understanding would so permit. State v. Little, 400 So.2d 197 (Fla. 5th DCA 1981).

Fundamental principles of statutory construction dictate that an enactment should be interpreted to render it constitutional if possible. State v. Keaton, 371 So.2d 86 (Fla.1979).

With the above constitutional maxims in mind, we find that a plain reading of the rule in question reveals that it sufficiently meets the test of constitutional validity to put a person on notice of what is prohibited. The rule prohibits a person from either possessing, or knowingly or negligently allowing, a dog in the management area, if the dog is customarily used for taking wildlife.

The issue of what type of dog is customarily used for taking wildlife presents an evidentiary question rather than a constitutional validity question.

Additionally, failure of the rule to specify what type of wildlife is protected does not render the statute vague. The rule is intended to protect wildlife found in a management area. If a statute or rule uses a word without defining it, then its common or ordinary meaning applies. State v. Little, supra. Webster’s New Collegiate Dictionary (1977) defines “wildlife” as “living things that are neither human nor domesticated” such as “mammals, birds, and fishes hunted by man.” A person of ordinary intelligence would understand what the rule is designed to protect without a listing of all types of wildlife in the management areas. The rule obviously prohibits hunting with dogs during all time periods without receiving the necessary permit or complying with the particular management area’s regulations.

The rule requires no guesswork on the part of dog owners visiting management areas. If the owner’s dog is one that is customarily used for hunting any type of wildlife, then the owner must receive a permit or comply with the management area’s regulations before possessing or allowing a dog onto a management area.

The order dismissing the petition is REVERSED.

BOOTH and JOANOS, JJ., concur.


author: PER CURIAM.

text:
    Daisey L. RHEM, Appellant, v. Eric E. WAGNER, P.A., and Florida Farm Bureau, Appellees.
    No. AF-244.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Victor J. Musleh of Musleh, Piccin, Atkins & Krehl, and Seymour H. Rowland, Jr., Ocala, for appellant.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellees.
   PER CURIAM.

This cause is before us on appeal by the claimant from a workers’ compensation order denying permanent partial disability benefits based on loss of wage earning capacity in excess of an anatomical disability of 11 percent, sustained as a result of the May 12,1979 industrial accident. The Deputy Commissioner properly found that claimant had failed to conduct a bona fide search for jobs within her physical limitations. See Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). Accordingly, the order is affirmed without prejudice to a subsequent petition for modification pursuant to Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982).

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: MILLS, Judge.

text:
    Thomas Allen CAPRIE, Appellant, v. STATE of Florida, Appellee.
    No. AG-232.
    District Court of Appeal of Florida, First District.
    June 18, 1982.
    Michael Allen, Public Defender, Melanie Ann Hines, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal has been conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After examining the record, we find no error and affirm.

SHIVERS, J., and CAWTHON, VICTOR M., Associate Judge, concur.


text:
    ANDY SAYYAH & ASSOCIATES and Michigan Mutual Insurance Company, Appellants, v. Anthony LOPEZ, Appellee.
    No. AG-262.
    District Court of Appeal of Florida, First District.
    June 18, 1982.

      Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier appeal from a deputy commissioner’s order awarding Lopez temporary total disability benefits and costs and reserving jurisdiction on the attorney’s fee issue. We reverse.

Lopez was released to return to work by his doctor after 31 March 1981. Because there was no medical evidence he was unable to work after this date, Lopez was required to make a conscientious work search and was required to show that his work search was unsuccessful due to his disability rather than to unavailability of work. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1980); Lehigh Corp., et al. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981).

Lopez has completed three years of college and has a degree in mortuary science. He has employment experience as an insurance adjuster, bartender, teacher, liaison between the United States Government and private industry for production scheduling for research and development work, purchasing agent, and a loan application processor.

Lopez sought work in only two areas in which he had experience — purchaser for furniture store and production scheduling. The balance of his work search consisted of seeking employment at fast food restaurants such as McDonald’s, Burger King, and Arby’s.

Although Lopez’s immediate past work history involved work as a stone mason, we find his work search inadequate under the circumstances of this case.

The order is reversed for proceedings consistent with this opinion.

SHIVERS, J., and CAWTHON, VICTOR M., Associate Judge, concur.


text:
    Harry K. MOORE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-143.
    District Court of Appeal of Florida, First District.
    June 18, 1982.

      Harry K. Moore, pro se.
    Catherine L. Dickson, Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

We affirm the Commission’s amendment to Moore’s presumptive parole release date (PPRD).

His PPRD was initially established as December 14, 1982. This calculation occurred when the examiner inadvertently failed to deduct the time Moore was out of custody on escape when calculating his time served in custody. The initial worksheet clearly shows that Moore was out of custody for 23 months and 15 days and that he had pending escape charges in Palm Beach County.

On the biennial review of Moore’s PPRD, the Commission discovered the clerical error and amended his PPRD to properly reflect the correct amount of time in custody.

The Commission may correct an obvious clerical mistake or computation error. See Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982). To hold otherwise would force the Commission to violate its own rules. Florida Administrative Code Rule 23-19.-02(1) states that time on escape shall not count for time in custody.

Moore has not been prejudiced by the Commission’s action. The Commission initially determined Moore should serve 113 months before being paroled. This calculation has not changed. The Commission’s action properly corrected Moore’s time in custody to reflect actual time served.

Had the computation error resulted in an incorrect date being established, resulting in a longer period of incarceration than determined, we, likewise, would approve the correction to result in the proper date being established.

McCORD and SHIVERS, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Gregory W. ALBERT, Appellant, v. Kelly Marie ALBERT, Appellee.
    No. 81-1642.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.

      William J. Terry, P. A., Tampa, for appellant.
    Prince J. McIntosh of Bay Area Legal Services, Inc., Tampa, for appellee.
   SCHOONOVER, Judge.

This is an appeal from a final judgment of dissolution of marriage holding that the appellant, Gregory W. Albert, had an obligation to support a child born during wedlock even though all parties agreed the child was not his. We reverse.

The appellant married the appellee, Kelly Marie Albert, on June 19, 1979. At the time of the marriage, Mrs. Albert was seven months pregnant with the child of another man. The minor child, Gregory W. Albert, Jr., was born on July 25, 1979. The appellant signed the application for the child’s birth certificate. The parties separated on December 30, 1980.

The appellant, petitioner in the trial court, alleged in his petition that the child was born during the marriage but denied that he was the natural father. The appel-lee’s counter-petition also alleged that the appellant was not the natural father but sought child support because the appellant had agreed to assume permanent responsibility for the care and support of the child. This allegation was denied by the appellant.

During the trial, both parties testified that the appellant was not the natural father of the child and that the appellant had orally agreed to take care of the child as if it were his own.

At the conclusion of the trial, the court found that since there was no prayer in the husband’s petition for dissolution of marriage requesting a finding of nonpaternity, the question of paternity was not properly before the court. The court further found that the appellant had a duty of support to the child.

Since the obligation of support is based upon parentage or contract, and there was no contract proven in this case, the court, by necessity, ruled on the question of paternity or it could not have ordered the appellant to pay support. Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1973).

The appellee contends that since the appellant agreed to accept the responsibility of the child and treat it as his own, he should be responsible for support. Similar statements were made by the husband in the Taylor case, but the Fourth District Court of Appeal in that case held at page 366:

Appellee had not contracted, either expressly or impliedly, to care for and support said child as his own beyond that period of time that he stood in loco paren-tis to the child by virtue of the marriage relationship to the child’s mother.

We agree that one who stands in loco parentis to a child has an obligation of support. However, the dissolution of the marriage terminated any relationship of in loco parentis between the appellant and the child and accordingly terminated the obligation of support. Taylor v. Taylor.

The appellant contends that the trial court erred in finding that he had a duty of support when both parties agreed that the husband was not the biological father of the minor child. We agree with this contention. A child born during wedlock is presumed legitimate, and this court has held that this presumption is one of the strongest rebuttable presumptions known in the law. Sanders v. Yancey, 122 So.2d 202 (Fla.2d DCA 1960). However, when all parties to the action agreed upon the identity of the natural father and that the appellant was not the natural father, this presumption was overcome.

We hold that a person has no legal duty to provide support for a minor child who is neither his natural nor his adopted child and for whose care and support he has not contracted. Taylor v. Taylor; Bostwick v. Bostwick, 346 So.2d 150 (Fla. 1st DCA 1977).

The appellee contends that the appellant should be estopped from denying parentage because he signed the birth certificate application. The doctrine of equitable estoppel may be applicable in some cases, e.g., Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 (N.Y.Sup.Ct.1963), and Gossett v. Ullendorf, 114 Fla. 159, 154 So. 177 (Fla.1934). However, the doctrine is not applicable when the only misrepresentation relied upon is that given in an original birth certificate application, and there is no additional evidence that a misrepresentation of parentage was made to a spouse or child who relied upon it to his or her detriment. Gossett v. Ullendorf; Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707, 90 A.L.R.2d 569 (Cal.App. 1st Dist. 1961); Taylor v. Taylor, 58 Wash.2d 51, 364 P.2d 444 (1961). Cf. Marshall v. Marshall, 386 So.2d 11 (Fla. 5th DCA 1980).

We accordingly reverse and remand for further proceedings consistent herewith.

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


author: HOBSON, Acting Chief Judge.

text:
    John W. CHAPMAN, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Gulf Properties Limited, Appellees.
    No. 81-2377.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.

      John W. Chapman, pro se.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee, Unemployment Appeals Com’n.
   HOBSON, Acting Chief Judge.

John W. Chapman appeals the Unemployment Appeals Commission’s affirmance of a hearing referee’s determination that he voluntarily left his job and thus was not entitled to unemployment compensation benefits. We reverse because a review of the record reveals that the Commission’s decision is not supported by substantial competent evidence.

Chapman and his wife were employed at an apartment complex. After a dispute, the employer discharged the wife. Shortly later, the employer asked Chapman about his plans concerning his job. Chapman replied that he would leave his job eventually but would remain as long as the employer wanted. The employer then stated that there was no need for him to wait until a replacement could be hired and advised him to immediately leave the job. In our view, the employer’s action amounted to a discharge; Chapman’s departure cannot be characterized as voluntary.

Accordingly, we REVERSE and REMAND the case to the Commission with directions to act in accordance with this opinion.

BOARDMAN and DANAHY, JJ., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Petitioner, v. Victor C. VOGEL and Edward A. Smith, Respondents.
    No. 82-809.
    District Court of Appeal of Florida, Second District.
    June 18, 1982.
    James T. Russell, State Atty. and Douglas E. Crow, Asst. State Atty., Clearwater, for petitioner.
    Susan S. Demers, St. Petersburg, for respondent Victor C. Vogel.

      George W. Greer, Clearwater, for respondent Edward A. Smith.
   BOARDMAN, Judge.

The state petitions for writ of common law certiorari to review a trial court order granting defendants’/respondents’ motion in limine, thereby excluding certain Williams rule evidence. We grant the writ.

The trial court originally denied respondents’ motion, only to reverse itself after the lunch recess and grant the motion, not for the reason that it was convinced that such a ruling was correct, but merely to give the state the opportunity to seek appellate review. We think such action is analogous to seeking an advisory opinion, which is not within the jurisdiction of this court under the current appellate rules. See generally 3 Fla.Jur.2d Appellate Review § 440.

It is absolutely essential to the speedy and proper disposition of cases pending in the judicial system that our trial judges make a reasoned determination of all issues before them rather than deferring to the judgment of the appellate courts, which engenders piecemeal and perhaps unnecessary appeals and results in undue delay and additional expense. This court will not review issues which the trial court has not previously decided; the initial decision is the responsibility of the trial court.

Accordingly, certiorari is granted, the trial court’s order granting respondents’ motion in limine is quashed, and the cause is remanded for a prompt ruling by the trial court using its best judgment and based on the facts and the law, which is the responsibility and duty of a trial judge.

SCHEB, C. J., and SCHOONOVER, J., concur.

      . Even under the prior appellate rules, specifically Florida Appellate Rule 4.6, a question could be certified from a circuit court to an appellate court only if the question was without controlling precedent in this state. F.A.R. 4.6(a).


text:
    Jose GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2514.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Bennett H. Brummer, Public Defender and William M. Grodnick,. Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   Revised Opinion

PER CURIAM.

We add to the growing list of cases requiring reversal on the basis of prosecuto-rial misconduct the case of Jose Gomez. He was convicted, following a jury trial, of aggravated assault, aggravated battery and possession of a firearm while engaged in a criminal offense.

The remarks which occasion this reversal were made during closing argument when the prosecutor concluded by saying:

Don’t let that gentleman [Luis Martinez] with three children and a wife walk away without justice in this case, facing possible jail, an arm that’s hideously changed the rest of his life and let these gentlemen [the defendant and codefendant] walk away into our community and commit further crimes of this nature. These assassins must be put away. It is your duty to do that. You told me you’ll do that. (Footnotes added).

The remarks here are so egregious that reversal is compelled. United States v. Modica, 663 F.2d 1173 (2d Cir. 1981); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1981); Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); see generally ABA Standards for Criminal Justice, 3-5.8 (1980).

The state suggests that we overlook the error complained of in view of the ‘overwhelming’ evidence of guilt in this case. The overwhelming evidence of guilt upon which the state relies is the admitted perjured testimony of Luis Martinez, the victim. (Martinez subsequently recanted his perjury and, in so doing, admitted that all the eye witnesses who testified on behalf of the state agreed to perjure themselves as well). The state offers nothing with respect to the perjury committed by the other witnesses. We find the state’s argument on this issue to be utterly devoid of merit.

For the reasons previously expressed and upon the authorities cited, this case is reversed and remanded for a new trial.

      . See Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982) and cases cited.

      . Luis Martinez, the victim, admitted that he committed perjury during the course of the trial.

      .The defendant had no prior criminal record (assuming arguendo that it was an appropriate issue).


text:
    The STATE of Florida, Appellant, v. Earl Benito GRAHAM, Appellee.
    No. 81-824.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    No appearance for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Reversed and remanded. Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    Ernest FLEMMING, Appellant, v. STATE of Florida, Appellee.
    No. 81-857.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Bennett H. Brummer, Public Defender and Eugene F. Zenobi, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

While there is no merit in the appellant’s attacks upon his convictions, which claim error in the failure to suppress his confession, see Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980), cert. denied, 452 U.S. 909, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981); State v. Thomas, 405 So.2d 462 (Fla. 3d DCA 1981); Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1977); compare Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), we do agree — as the state concedes — that his sentence for attempted burglary of an occupied dwelling must, after remand, be reduced from fifteen to five years imprisonment. Sec. 777.-04(4)(c), 775.082(3)(d), Fla.Stat. (1979); Fenn v. State, 398 So.2d 1004 (Fla. 5th DCA 1981). With that exception, the judgments and sentences under review are affirmed.

Affirmed as modified.


author: JORGENSON, Judge.

text:
    Rolando BARBON-ZURITA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1443.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Bennett H. Brummer, Public Defender and Ellen L. Leesfield, Sp. Asst. Public Defender and Eric Cohen, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Rolando Barbon-Zurita and a co-defendant were charged with second degree murder, unlawful possession of a firearm while engaged in a criminal offense and carrying a concealed firearm. Barbon-Zurita was convicted of all three counts, following a jury trial. It is that judgment and sentence from which he appeals. We affirm.

Prior to trial, both defendants filed motions to sever, which the State initially resisted. Thereafter, and still prior to jury selection, the State conceded the motions to sever were well-taken. Notwithstanding the State’s concession, the defendant entered into a pre-trial stipulation with the State and co-defendant for a joint trial and, in so doing, acknowledged that the defenses would, in all likelihood, be antagonistic. Following the stipulation, a jury was selected and opening statements were made. Counsel for Barbon-Zurita then again moved for severance in light of the opening statements re-alleging, as a basis for the severance, that the defenses were antagonistic and that Barbon-Zurita would be denied due process if the new motion for severance were not granted.

We conclude the trial court did not err in denying defendant’s untimely motion for severance, nor is there a due process violation where there has been an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Fla.R.Crim.P. 3.153.

Appellant’s reliance on Crum v. State, 398 So.2d 810 (Fla.1981) is misplaced. In Crum, our Supreme Court concluded that the test for appellate review of a trial court’s discretionary ruling is whether or not the trial court abused its discretion. Crum at 811. Furthermore, there is no demonstration by Barbon-Zurita that the new motion for severance was based on facts which were not known before trial. Appellant was fully aware of the antagonistic defenses and the only surprise was the level of advocacy employed by counsel for the co-defendant. Barbon-Zurita knew full well that co-defendant would be accusing him and that he, likewise, would be accusing the co-defendant.

Where, as here, a defendant intentionally abandons his right to a severance as a matter of “trial strategy,” no error is demonstrated, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, and a new motion made during trial will be deemed untimely, Fla.R.Crim.P. 3.153.

We have examined the other issues presented and conclude that they are without merit. Accordingly, the judgment and sentence are affirmed.

      . Not a party to this appeal.


author: PER CURIAM. BASKIN, Judge

text:
    Lazaro ALBO, Appellant, v. INTERNATIONAL SEWING SUPPLIES CORPORATION, Appellee.
    No. 81-1451.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellant.
    No appearance for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed.

BASKIN, Judge

(dissenting).

Because I believe the evidence which was unavailable at time of trial is crucial to a determination of the merits of the cause and casts doubt upon the credibility of testimony presented at trial, I would reverse the trial court’s Order Denying Motion for Rehearing, vacate the Final Judgment, and remand for consideration of the newly discovered evidence.


text:
    COURTELIS COMPANY, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 81-1609.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Malspeis, Lococo, Brown & Schwartz, Jay D. Schwartz, North Miami, for appellant.
    John H. Beck and Margaret-Ray Kemper and Charles G. Gardner and Philip S. Bennett, Tallahassee, Mark Linsky, Florida Dept, of Transportation, Tallahassee, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   JORGENSON, Judge.

This is an appeal from a final administrative order of the Department of Transportation which required the Courtelis Company, appellant here, to remove an outdoor advertising sign which the Department alleged was not in conformity with certain provisions of Florida Statutes and Rules of the Department. We reverse.

Following a notice of violation, Courtelis Company requested an administrative hearing, pursuant to Section 120.57, Florida Statutes (1979), which occurred on February 4, 1981. The hearing officer issued his recommended order on March 3, 1981. On June 22, 1981, 111 days after the recommended order, the Department of Transportation entered its final order overruling the recommendations of the hearing officer and ordered removal of the sign. The Department’s final order is a violation of the mandatory 90-day requirement of Section 120.-59(l)(b). Coincident with appellant’s receipt of the final order (three days after it was entered), the Department of Transportation removed the sign by sawing it down.

We need go no further than Hyman v. State, Department of Business Regulation, 399 So.2d 1098 (Fla. 3d DCA 1981), where the court held “... that a violation of this mandatory requirement per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist .... ” Clearly, the Department of Transportation is the protagonist here and Hy-man, supra, is controlling. We, accordingly, reverse the final order under review and remand to the Department with directions to reinstate the recommended order of the hearing officer. Section 120.68(9Xb), Florida Statutes (1979).

Reversed and remanded with directions.

      . The hearing officer recommended dismissal of the cause for lack of jurisdiction over the owners of the sign.

      . No waiver or extension of the 90-day time limit imposed by Section 120.59, Florida Statutes (1979) appears on this record.


text:
    Gerard MAINOR, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1733.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Clinton J. Pitts and Joel V. Lumer, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN, (Ret.) Associate Judge.
   PER CURIAM.

After a jury trial, Gerard Mainor was found guilty of first degree murder [Count I], sexual battery [Count 2] and burglary [Count 3]. As to Count 1, he was sentenced to life imprisonment without becoming eligible for parole for twenty-five years; as to Count 2, fifteen years; and as to Count 3, life imprisonment, the terms to run consecutively. The issue presented on this appeal is whether the court erred in permitting evidence of a prior collateral crime.

The evidence which was objected to was the testimony of the victim’s mother that on the evening prior to the murder, she awoke to find the defendant in her home attempting to rape her daughter. The intruder was startled, ran out the door knocking the mother over, and exited the house. The two incidents were linked together by the mother’s identification of the defendant as the intruder on the previous evening, as well as an identification made by the victim after the first incident.

Evidence of other crimes is generally admissible if it is relevant for a purpose other than to show the bad character of the accused or his propensity to commit crime. In the present case, evidence of the prior crime is admissible to establish the entire context out of which the criminal conduct arose, Smith v. State, 365 So.2d 704, 707 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Ashley v. State, 265 So.2d 685, 694 (Fla.1972); to establish identity, Shriner v. State, 386 So.2d 525, 532 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); and to establish intent, Ashley, supra, at 707.

Even if the evidence of the collateral crime was inadmissible, we would be compelled to affirm because of the overwhelming evidence against the defendant which included confessions to two different individuals. See Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980).

Accordingly, the judgment and sentence are affirmed.


text:
    Eddie BOYKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1772.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. McBride v. State, 191 So.2d 70, 71 (Fla. 1st DCA 1966).


text:
    Charles SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1869.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. § 90.803(1), (2), Fla.Stat. (1981).


author: NESBITT, Judge.

text:
    Freddie ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1966.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant appeals his adjudication of burglary pursuant to Section 810.02, Florida Statutes (1979).

Policemen had observed the defendant for at least one minute’s interval with his head, shoulders, and forearms inside the engine compartment of a hoodless Mustang in an automotive repair shop. One of the officers actually observed the defendant take the radiator from the engine compartment of the vehicle. Investigating officers later determined that the components of a radiator and an air filter, which were missing from the engine, were in fact those removed by the defendant.

The statute under which the defendant was convicted provides, in pertinent part:

(1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, ...

The trial judge found that the defendant’s actions violated that portion of the statute which punishes one for “remaining in a conveyance.” We affirm. The fact that only a portion of the defendant’s body remained in the compartment or that it only remained there for a minute or two does not eradicate the defendant’s guilt. His intrusion plainly violated the possessory intent of the vehicle’s owner. See State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979).

Affirmed.

      . The conviction may also be affirmed on the basis that there was an “entry” into the engine. Unlike the acts in R. E. S. v. State, 396 So.2d 1219 (Fla. 1st DCA 1981) (siphoning gasoline) and State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979) (removal of hubcaps), the defendant here, removed something from inside of the conveyance even though he did not lift the hood to do so. This case is similar to State v. Harvey, 403 So.2d 630 (Fla.2d DCA 1981) where the defendant was found underneath the car loosening a bolt in an attempt to remove the starter. Furthermore, there is no distinction, for purposes of the burglary statute, between entering the passenger compartment and entering the engine. Bragg v. State, 371 So.2d 1082 (Fla. 4th DCA 1979).


text:
    Miriam DONNER and Arthur J. Morburger, Appellants, v. Steve EBELSTEIN, Assistant City of Miami Attorney, Michael J. Murphy, Esquire, Fowler, White, Burnett, Hurley, Banick & Strickroot, P. A., and the City of Miami, a municipal corporation, Appellees.
    No. 82-58.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Miriam Donner and Arthur J. Morburger, in pro. per.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., Fowler, White, Burnett, Hurley, Banick & Strick-root and Michael J. Murphy, Miami, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We leave for another day the question whether by enacting the Florida Evidence Code, Section 90.502, Florida Statutes (1981) (effective date July 1, 1979), declaring that communications between lawyer and client are confidential, the Legislature has effectively amended the earlier enacted but subsequently reenacted law allowing the inspection and examination of public records, Public Records Act, Sections 119.-01-12, Florida Statutes (1981) (effective date July 1,1975), and exempted therefrom records reflecting lawyer-client communications as “public records which are presently provided by law to be confidential,” § 119.-07(3)(a), Fla.Stat. (1981), since on the record before us we need only decide whether the original petition for writ of mandamus filed by Donner and Morburger, which alleged in pertinent part that the respondents, an assistant city attorney of the City of Miami and a private attorney employed by the City to represent it in connection with certain pending litigation brought by Donner against the City, were custodians of public records (that is, files and papers relating to such litigation), and refused to produce such records for inspection and examination, stated a claim for mandamus relief under the Public Records Act or, as the trial court held, was subject to dismissal.

On the state of this record, we find no basis upon which the dismissal of the petition can be upheld. The records, as described in the petition, quite clearly fall within the definition of public records as broadly defined in Section 119.011, Florida Statutes (1981); the trial court, dismissing the complaint on its face, most certainly made no determination that the records sought, or any of them, fell without this definition, see Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 879 So.2d 633 (Fla.1980); and the records sought are those of an agency as defined in Section 119.011(2), Florida Statutes (1981), see Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1977). We cannot, as the respondents suggest we do, read the trial court’s unelucidating bare bones order of dismissal, which recites only that the relators have not made out a prima facie case, as a ruling that the records sought were exempt from disclosure, since in our view (1) any claim of exemption, or non-disclosure, is in the nature of an affirmative defense which must be raised in response to the issuance of an order to show cause why the relief sought should not be granted; (2) in any event, exemption could only be determined by reference to specific records, § 119.07(2)(a), Fla.Stat. (1981), none of which were before the trial court; and finally, a ruling on an exemption would necessarily be a ruling on the merits, not a dismissal for failure to make out a prima facie case.

Accordingly, we reverse the trial court’s order of dismissal with directions to issue an order to the respondents to show cause why the relief prayed for in the petition should not be granted, and for further proceedings.

Reversed and remanded.

      . The respondents also ask us to read the dismissal as a ruling that the relators, because involved — Donner as a party, Morburger as her counsel — in litigation with the City of Miami in which these records are sought through the rules pertaining to discovery, are disqualified from asserting rights as members of the public under Chapter 119. If the respondents choose to raise this dubious defense, see Wait v. Florida Power & Light Co., supra, they, of course, may affirmatively do so, and in due course the trial court will undoubtedly rule on it.


text:
    Franz Alexander ARANGO, Appellant, v. Esther Inglesias ARANGO, Appellee.
    No. 82-67.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Willard K. Splittstoesser, North Miami, for appellant.
    Miguel A. Pirez-Fabar, Coral Gables, for appellee.
    Before BARKDULL, SCHWARTZ, and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Pujals v. Pujals, 414 So.2d 228, n.1 (Fla. 3d DCA 1982); Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978).


text:
    Gale Glass EZELL and Sheldon Ezell, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, an agency of the State of Florida, William J. Page, Jr., David H. Pingree, Secretary, Department of Health and Rehabilitative Services, Alfred Campbell, One Unknown Intake Counselor, an employee of the Department of Health and Rehabilitative Services, and Carl Dean, Appellees.
    No. 82-543.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Michael Brodsky, Miami, for appellants.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

This is an appeal from a non-final order transferring venue to the Second Circuit in Leon County. We have jurisdiction, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

The plaintiff, a special education teacher, joined by her husband for his derivative claim, sued the Department of Health and Rehabilitative Services (HRS) and various of its employees for an assault committed upon her by a male teenage inmate who had escaped from Dade Halfway House. The defendants were sued in both their representative and individual capacities. The attorney general, representing HRS and the state employees, filed a timely motion for change of venue on behalf of all, which was granted. We affirm the order insofar as it transferred the claims against HRS to the Second Circuit because, under the state agency venue rule, HRS has the absolute privilege, when timely exercised, to have the action tried where the agency maintains its principal headquarters. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978).

As to the claims against the employees in their individual capacities, we observe that the election of venue was the prerogative of the plaintiff. Itel-Pas, Inc. v. Jones, 389 So.2d 1085 (Fla. 3d DCA 1980). However, when the state exercised its venue privilege, it was within the trial judge’s discretion whether to grant a transfer with respect to the claims against the defendants individually. Greer v. Mathews, 409 So.2d 1105 (Fla. 1st DCA 1982); Wagner v. Nova University, Inc., 397 So.2d 375 (Fla. 4th DCA 1981). Because there are insufficient facts upon which we can determine whether there was an abuse of discretion in changing venue as to the individual employees, we remand for consideration of the factors enunciated in Section 47.122, Florida Statutes (1979) and Florida Rule of Civil Procedure 1.270 pertaining to separate trials. See Wagner v. Nova University, Inc., supra.

Affirmed in part; remanded in part for further proceedings consistent with this opinion.

      . The cause of action in the present case accrued on December 14, 1977 prior to the enactment of Section 768.28, Florida Statutes (1980 Supp.), effective July 1, 1980, which provides immunity to public employees.

      . We recognize that the state agency rule has since been partially abrogated by Section 768.-28(1), Florida Statutes (1981), effective October 1, 1981. See Florida Department of Transportation and State of Florida v. Lopez, 415 So.2d 116 (Fla. 3d DCA 1982) (Case no. 82-638, opinion filed June 15, 1982).


text:
    Ondina WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-919.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.

      Ondina Williams, in pro. per.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Carlton O. DALEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1169.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Carlton 0. Daley, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Larry Darnell BEAMON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1167.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Larry Darnell Beamon, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that is conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Alvin F. FRAZIER, Patricia N. Frazier, and Government Employees Insurance Company, Appellants, v. Michael J. SCHNAEDELBACH, a minor, By and Through his Father and Next Friend, Michael SCHNAEDELBACH and Michael Schnaedelbach, individually, Appellees.
    No. 80-1880.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskem and Bradford A. Thomas, Miami, for appellants.
    Neblett & Sauer and John N. Moore, III, Key West, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 3, 1981, (394 So.2d 562) reversed and remanded the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 29, 1982, 413 So.2d 1187 and mandate now lodged in this court, quashed this court’s judgment.

NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued on March 19, 1981 is withdrawn, the judgment of this court filed March 3, 1981 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400 a, Florida Rules of Appellate Procedure).


text:
    STATE of Florida, Appellant, v. Emily O’Steen ISHIE a/k/a Emily Frances Ishie, Appellee.
    No. AD-313.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellant.
    Margaret Kathleen Wright, Asst. Public Defender, for appellee.
   SHIVERS, Judge.

The state appeals from a final order granting appellee’s motion to dismiss.

Appellee was charged by information with the following offenses, all of which arose out of a single transaction: (1) DWI-manslaughter, in violation of section 860.01, Florida Statutes (1981); (2) vehicular homicide, in violation of section 782.071, Florida Statutes (1981); and (3) driving without a valid driver’s license, in violation of section 322.03, Florida Statutes (1981). Appellee filed a motion to dismiss the vehicular homicide charge, which was granted by the trial court on the grounds that vehicular homicide was a lesser included offense of DWI-manslaughter. This appeal followed.

The state argues that under the Block-burger test, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), vehicular homicide is not a lesser included offense of DWI-manslaughter and that, therefore, double jeopardy does not bar the state from charging appellee with both offenses. In response, appellee contends that double jeopardy does apply because In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 6 FLW 305 (Fla.1981), the Florida Supreme Court adopted a schedule of lesser included offenses which lists vehicular homicide as a lesser included offense of DWI-manslaughter.

The Court has considered the arguments presented by both parties and finds that the double jeopardy clause does not bar the state from charging appellee with both offenses. In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the Florida Supreme Court held that in a single trial setting the double jeopardy clause does not bar the state from convicting a defendant of both the greater and lesser included offenses but that only one sentence, for the greater offense, is proper. See also State v. Thompson, 413 So.2d 757 (Fla.1982). Since the state is not prohibited by double jeopardy from seeking a conviction on both the greater and lesser included offenses, double jeopardy cannot bar the state from charging a defendant with both offenses. Regardless of whether vehicular homicide is a lesser included offense of DWI-manslaughter, double jeopardy does not bar the state from charging appellee with both offenses. The judgment is REVERSED.

MILLS, J., and VICTOR M. CAWTHON, Associate Judge, concur.


text:
    W. Juanita COLLINS, Appellant, v. FAIRWAY MARKET and General Adjustment Bureau, Appellees.
    No. AG-113.
    District Court of Appeal of Florida, First District.
    June 23, 1982.

      Louis C. Bouchard of Law Office of Lawrence H. Hornsby, P. A., Orlando, for appellant.
    Douglas Edward Daze of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appel-lees.
   MILLS, Judge.

Claimant contends that the deputy commissioner erred in dismissing her claim. We affirm.

The dismissal is authorized by Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961). There is competent substantial evidence in the record that (1) claimant knowingly made false representations, (2) the employer relied on the misrepresentations, and (3) there was a causal connection between the misrepresentations and the injury.

McCORD and SHIVERS, JJ., concur.


author: WIGGINTON, Judge.

text:
    LAYNE ATLANTIC COMPANY and Wausau Insurance Companies, Appellants, v. Allen Eugene SCOTT, Appellee.
    No. AH-151.
    District Court of Appeal of Florida, First District.
    June 23, 1982.

      Richard A. Weisberg, of Cooper & Riss-man, Orlando, for appellants.
    Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WIGGINTON, Judge.

In this workers’ compensation appeal, the employer/carrier contend that the value of out of town vehicle and motel expenses should not have been considered by the deputy commissioner when computing the claimant’s average weekly wage and the concomitant compensation rate. The appellants also argue that the deputy erred in awarding Scott an attorney’s fee pursuant to Section 440.34(2)(b), Florida Statutes (1979). We agree in part.

The term “wages” is defined by statute as “the reasonable value of board, rent, housing, lodging or similar advantage received from the employer.” § 440.02(12), Fla.Stat. (1979). By decisional authority, this definition has been said to encompass employee benefits such as work uniforms, child care and meals, and the employer’s contributions to medical insurance and vested pension plans. In each of these circumstances, the employer-provided benefits represented a real and reasonably definite economic gain to the employee. See 82 Am.Jur.2d, Workmen’s Compensation §§ 371, 372. The employer expenses presented in this case, however, do not fall entirely within the contemplation of the statute.

We must not lose sight of the reason for determining average weekly wage, which is to eventually measure the economic loss a worker experiences when he suffers “loss of wage earning capacity” or “wage loss” as those terms of art are statutorily defined. If an employer stops helping an employee meet his personal expenses, the employee has suffered an economic loss. Obviously this occurs when the employee loses his job and paycheck; more subtly, it may occur when an employer no longer provides clothing worn at work. However, if an employer no longer makes certain expense payments because the employee no longer incurs those expenses, the employee has suffered no economic loss.

In short, we cannot construe the term “wages” to include a make-whole reimbursement for uniquely work-related expenses that are created by and within the employment. See Moorehead v. Industrial Commission of Arizona, 17 Ariz.App. 96, 495 P.2d 866 (1972).

Here, because the away-from-home motel expense was solely a creature of the job, Scott, who is no longer employed by Layne Atlantic Company and no longer must bear this extraordinary expense, has suffered no economic loss based on his failure to receive such reimbursement now. Consequently, the deputy should not have added this value to Scott’s average weekly wage.

Similarly, the vehicle provided Scott appears to have been a solely work-created and work-related expense; however, the record is not conclusive. It is a relatively simple matter to identify such items as meals, uniforms and insurance or pensions and conclude that they satisfy independent personal needs for food, clothing and protection from calamity, thereby qualifying as “wages.” Conversely, it is readily apparent that a dollar-for-dollar reimbursement for an away-from-home motel room satisfies a need that would not exist but for the idiosyncrasies of work, so it cannot be considered as “wages.” However, benefits derived from an employer-provided vehicle cannot be so neatly categorized; this raises a question of fact that must be resolved by the deputy commissioner.

If it is reasonably possible to identify items or expenses of independent personal benefit, then the deputy must do so and include the value of such personal benefit as part of the average weekly wage. A deputy has wide fact-finding latitude in this regard, and his valuation will not be disturbed if it is reasonably supported by the record. On remand, the deputy is directed to ascertain, if reasonably possible, the personal benefit Scott derived from his use of the vehicle. This value should then be included in his average weekly wage. Cf. Florida Highway Patrol Auxilliary v. Long, IRC Order 2-3825 (May 25, 1979).

Our opinion today is not inconsistent with the recent decision of another panel of this Court in Viking Sprinkler Company, et al. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982), where a $90 weekly expense allowance was found to be includable in the average weekly wage. There, the uniformity and regularity of the expense payments coupled with the employee’s broad discretionary ability in putting the money to use was sufficient evidence from which the deputy could conclude that the allowance was not a bona fide make-whole reimbursement and that the employee had received independent personal benefit.

We reject the carrier’s argument in its second point on appeal that the deputy erred in awarding an attorney’s fee upon a finding that the carrier had demonstrated bad faith in its handling of the claimant’s catastrophic disability benefits. See § 440.-34(2)(b) (1979). Arguably, the carrier’s passive failure to investigate the extent of the claimant’s residual disability and its related failure to promptly pay appropriate catastrophic disability benefits demonstrates bad faith. Arguably it does not. Therefore, we affirm the deputy’s decision. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

However, we agree with the carrier that it was improper for the deputy to compute the amount of the fee by considering hours the claimant’s attorney spent in prosecuting the fee. Florida Power Corporation v. Baker, 410 So.2d 179 (Fla. 1st DCA 1982). On remand, the fee should be computed and awarded without considering these hours.

This cause is reversed and remanded with instruction that the deputy commissioner redetermine the claimant’s average weekly wage and the amount of his attorney’s fee in accordance with this opinion.

BOOTH and WENTWORTH, JJ., concur.

      . Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970).

      . Jess Parrish Memorial Hospital, et al. v. Ansell, 390 So.2d 1201 (Fla. 1st DCA 1980).

      . Agrico Chemical Co., et al. v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980).

      . City of St. Petersburg, et al. v. Johnson, IRC Order 2-3483 (July 21, 1978), cert. denied, 368 So.2d 1364 (Fla. 1979).


text:
    Paul H. HESSLER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-338.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Paul H. Hessler, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n.
   SHIVERS, Judge.

Appellant, Hessler, appeals the decision of the Florida Parole and Probation Commission establishing a PPRD of March 1, 1983.

We have considered the issues raised by appellant, pro se, and find that they are without merit. However, on review of the record, the court notes that the Commission erred in establishing appellant’s offense severity characteristic. Appellant was convicted of the offense of grand theft involving more than $100 but less than $20,000. According to Rule 23-19.05 III, Fla.Admin.Code, this offense corresponds to an offense severity rating of “moderate” on the offense characteristic matrix. The Commission determined appellant’s offense characteristic to be “high”. The offense severity rating must reflect the present offense of conviction. McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981); Lowe v. Florida Parole and Probation Commission, 411 So.2d 352 (Fla. 1st DCA 1982); Rule 23-19.01(1), Fla.Admin.Code. We reverse the judgment of the Commission establishing appellant’s offense severity rating as “high”, and remand this case to the Commission for the determination of a PPRD which is consistent with this order and in accordance with the Commission’s rules in effect when appellant’s PPRD was initially set.

AFFIRMED in part and REVERSED in part.

MILLS, J., and VICTOR M. CAWTHON, Associate Judge, concur.


author: McCORD, Judge.

text:
    CITY OF POMPANO BEACH, Appellant, v. Lovely SANDERS, Appellee.
    No. AH-368.
    District Court of Appeal of Florida, First District.
    June 23, 1982.

      Albert P. Massey, III, of Pyszka & Kes-sler, P. A., Fort Lauderdale, for appellant.
    Frank E. Maloney, Jr., P. A., Macclenny, for appellee.
   McCORD, Judge.

The employer/carrier appeals from a workers’ compensation order finding that the claimant had sustained a compensable injury arising out of and in the course of his employment and that timely notice of the injury had been given to the employer. We reverse.

The claimant is a 45 year old man who had been employed by the City of Pompano Beach for approximately 15 years. He had had prior back injuries in 1974 or 1975, one time while he was using a sledge hammer, another time when he fell in a hole. As a result of these prior injuries he had continuing pains in his back.

Claimant testified that on November 10, 1980, he was moving a cabinet with a coworker when he felt a sharp swish, or “twinkle,” in his back. While he didn’t think anything about it at the time, he awoke the next morning and found himself unable to walk. Shortly thereafter, he was admitted to the hospital, where a laminecto-my was performed on his back.

The claimant presented no expert testimony below regarding the incident of November 10,1980, and his subsequent disability. On the other hand, the employer/carrier presented the depositional testimony of Dr. Cole, an examining orthopedic surgeon. Dr. Cole testified unequivocally “that the incident of November 10th did not materially change his prior condition at all, and that he was having essentially the same symptoms for which he was operated on well before that.” Upon learning that the claimant had only a bulging, and not extruded disc, Dr. Cole also opined that this fact “further corroborates that his November 10th (incident) was not the precipitating cause that required him to have surgery.” In the absence of any medical testimony to the contrary, we must accept Dr. Cole’s opinion and overturn the deputy's finding of compensability:

Reasonable medical probability may be established by either medical or lay testimony. Although lay testimony cannot be used to establish a causal relationship within reasonable medical probability as to conditions and symptoms that are not readily observable, it is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. (Citations omitted; emphasis supplied)

McCall v. Dick Burns, Inc., 408 So.2d 787, 792 (Fla. 1st DCA 1982). Here, the claimant’s testimony is simply not competent, substantial evidence to establish a causal relationship between the incident of November 10,1980, and his subsequent disability. Since Dr. Cole’s opinion is the only probative evidence of the existence or absence of a causal relationship within reasonable medical probability, we have no choice but to reverse the deputy’s finding of a causal relationship between the incident of November 10th and the claimant’s subsequent operation and disability. Our resolution of this issue obviates any need on our part to discuss the employer/carrier’s arguments regarding the untimely notice of injury.

REVERSED.

MILLS and SHIVERS, JJ., concur.


text:
    LANG POOLS and Continental Insurance Company, Appellants, v. Sheila McINTOSH, Appellee.
    No. AH-408.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Ellen H. Lorenzen, Tampa, for appellants.
    Bruce A. Walkley of McClain, Walkley & Stuart, Tampa, for appellee.
   PER CURIAM.

The employer/carrier appeals a workers’ compensation order finding that the trauma suffered by claimant was a causative contributing factor to an aseptic necrosis of her hip. We remand for clarification.

The claimant testified by deposition that she injured her hip while picking up jugs of chlorine. The accident was similarly described by Dr. Kriz, who deposed that such a simple act, even if performed on a repeated basis, would not set the stage for a vascular necrosis of the femoral head. According to Dr. Kriz, the cause of claimant’s condition is related to her use of birth control pills and cigarettes.

The only direct evidence of causal relationship between the accident and claimant’s condition is found in Dr. Dave’s deposition. Although it is questionable whether that deposition and the attached letters were of record, we assume they were because the deputy referred to the deposition in his order and because the parties have so stipulated on appeal.

Dr. Dave testified by deposition that claimant suffered a fall while carrying jugs of chlorine and that the injury which resulted from said trauma produced a possible synovitis which gradually developed a problem of circulatory changes in claimant’s hip joint, thus causing an aseptic necrosis of the head of the femur. However, attached to Dr. Dave’s deposition was a letter written by him prior to the date of deposition in which he noted that claimant receded from any history of a fall. The doctor did not state whether claimant’s condition could be caused by the mere act of carrying jugs.

A medical expert’s opinion does not eliminate the necessity of proving the essential foundation facts in support thereof. Gold Coast Paving Company, Inc. v. Fonseca, 411 So.2d 259 (Fla. 1st DCA 1982). On the record before us, there is no competent substantial evidence upon which to find that claimant suffered a fall. Since Dr. Dave’s opinion is premised upon the history of a fall, which is at variance with the accident as described by claimant, that doctor’s opinion lacks factual foundation and does not support a finding of causation.

However, the brevity of the deputy commissioner’s conclusory order has impeded our review. Accordingly, we decline to reverse at this time and, instead, remand the cause to the deputy commissioner with directions to clarify his order by setting forth his findings of fact and resolving any discrepancies therein.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


author: CAWTHON, VICTOR M., Associate Judge.

text:
    FORD MOTOR COMPANY, Appellant, v. E. E. GARRISON, Jr., Appellee.
    No. AI-413.
    District Court of Appeal of Florida, First District.
    June 23, 1982.

      Carl M. Stewart of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellant.
    Andrew J. Decker, III, of Airth, Sellers & Lewis, Live Oak, for appellee.
   CAWTHON, VICTOR M., Associate Judge.

The Ford Motor Company (Ford), the defendant below, timely appeals from a post-judgment order assessing certain expert witness fees. We reverse.

The relevant facts to this appeal are essentially undisputed. In his second amended complaint Garrison alleged that Ford, in its sale of a Ford Series Model 9700 tractor, breached an implied warranty that the tractor was fit for the particular purpose for which it was intended, i.e., for use in Garrison’s farming operations, and certain express warranties regarding the manufacture of the tractor. Ford initially denied liability. Garrison then embarked upon a course of serving four sets of interrogatories seeking information and documents. Eventually, on January 9, 1981, Garrison filed a motion to compel discovery because Ford had failed to produce any of the requested documents and had failed to answer any questions contained in the second, third and fourth sets of interrogatories. On January 16, the trial court ordered Ford to furnish full and complete answers to the interrogatories and to produce the requested documents on or before 2 p. m., January 19, 1981, at which time Ford’s designee was to be deposed by Garrison’s counsel. Ford, however, failed to timely provide the answered interrogatories and requested documents and cancelled the deposition of its designee scheduled for January 19th. The next day, Garrison served a motion to impose sanctions on Ford for its noncompliance with the Florida Rules of Civil Procedure and the trial court’s order of January 16, 1981. At a hearing on the motion held two days later, Ford’s counsel produced answers to the second, third, and fourth sets of interrogatories and hand-delivered a response to Garrison’s amended notice of taking deposition of Ford’s designee that admitted liability. A non-jury trial was subsequently held on the issues of damages. After the trial, both parties submitted memoranda to the trial court on the issue of whether Garrison should be allowed to tax approximately $1,100.00 for the services of a certain expert witness who completed a report for Garrison approximately two months prior to the time service of process was made on Ford. During the course of the litigation, neither party ever took this expert’s deposition, nor was he called upon to testify at trial as Ford had admitted liability. The trial court ruled in favor of Garrison, and this appeal ensued.

We find that this award cannot be upheld under Section 92.231, Florida Statutes, for the expert witness, Dr. Dow Whitney, did not testify in this cause. Garrison, however, argues that the award of these fees as costs can be justified under Florida Rule of Civil Procedure 1.380. We disagree. The record does indeed indicate that Ford was dilatory in responding to Garrison’s interrogatories and requests to produce, and we certainly look with disfavor upon such a practice. Generally, where a party fails to respond to discovery requests and does not give notice and sound reason for his failure to do so, sanctions should usually be imposed. Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976). However, in those instances where the trial court grants a motion compelling discovery, Florida Rule of Civil Procedure 1.380(aX4) provides:

If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorney’s fees, unless the court finds that the opposition to the motion was justified or that other circumstances make an award of expenses unjust .... (Emphasis supplied).

While it is within the discretion of the trial court to impose sanctions, those sanctions must be commensurate with the violation. See Turner v. Anderson, 376 So.2d 899 (Fla. 2d DCA 1979). Here, Rule 1.380(a)(4) specifically limits the award of costs to those “reasonable expenses incurred in obtaining the order.” Since Dr. Whitney’s services were not reasonably related to Garrison’s efforts to secure the order compelling the defendant to furnish discovery, we must conclude that the rule does not suffice to uphold the trial court’s award.

Accordingly, the trial court’s order awarding Dr. Whitney’s fees as costs is reversed.

MILLS and SHIVERS, JJ., concur.


text:
    Elzie COOK, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-22.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Elzie Cook, pro se.
    No appearance for appellee.
   MILLS, Judge.

Cook appeals the dismissal of a Section 120.56, Florida Statutes (1981), challenge to the Commission’s Rule 23-19.01(5). We affirm.

The rule is not in conflict with Section 921.16(1), Florida Statutes (1981).

The Division of Administrative Hearings does not have jurisdiction to dispose of constitutional issues in a Section 120.56 proceeding.

McCORD and SHIVERS, JJ., concur.


text:
    Roger SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AJ-348.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal has been conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After examining the record, we find no error and affirm.

McCORD and SHIVERS, JJ., concur.


text:
    Richard Lee DART, Appellant, v. STATE of Florida, Appellee.
    No. AL-228.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Richard Lee Dart, in pro. per.
    No appearance for appellee.
   PER CURIAM.

In this appeal from the trial court’s summary denial of his motion for post-conviction relief, Florida Rule of Criminal Procedure 3.850, appellant contends that the trial court erred in adjudicating him guilty of and sentencing him for the crimes of burglary with intent to commit assault and sexual battery. Depending upon the accusatory pleadings and the evidence presented at trial, the charge of sexual battery may or may not be a lesser-included offense of burglary while committing an assault. See, e.g., McElveen v. State, 415 So.2d 746 (Fla. 1st DCA, 1982). Here, however, it is impossible to determine the merits of appellant’s contentions without the aid of, at the very least, the charging instrument, and possibly portions of the record. Compare Watkins v. State, 413 So.2d 1275 (Fla. 1st DCA 1982).

Accordingly, we reverse and remand to the trial court for attachment of those portions of the record which effectively refute appellant’s claim or for an evidentiary hearing upon his allegations.

McCORD, MILLS and SHIVERS, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    In re Matter of ATTORNEY’S FEES AWARDED IN STATE OF FLORIDA V. DALE M. WARMAN. Mitchell J. BEERS, Petitioner, v. PALM BEACH COUNTY, Respondent.
    No. 81-921.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Mitchell J. Beers of Mitchell J. Beers, Palm Beach Gardens, pro se. petitioner.
    Charles F. Schoech, County Atty., and David M. Wolpin, Asst. County Atty., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Petitioner challenges an order granting him attorney’s fees in the amount of $1,500 for his representation of an insolvent criminal defendant. Before addressing the merits, we note that the style of the case has been changed on our own motion.

On June 5,1980, the trial court appointed petitioner, a private lawyer, to represent Dale Warman, a criminal defendant charged in seven separate informations with the crimes of robbery. Each information charged an unarmed robbery pursuant to section 812.13(2Xc), Florida Statutes (1979). In January of 1981 Warman entered a plea of guilty to each charge. In March defense counsel filed a petition for attorney’s fees based on section 925.036(2), Florida Statutes (1979), and Palm Beach Administrative Order 1.Q11-4/80. The petition asked the court to set a fee based on 99.4 hours of work performed on Warman’s case. Petitioner requested an award of $4,970.00 but later amended that figure to $4,519.00. The trial court ordered the county to pay petitioner $1,500.00 for his services. This proceeding followed.

Petitioner argues that because the total number of hours he spent on the case was never disputed (a fact that is true), the trial court erred in not awarding the requested fee. The trial judge, according to petitioner, acted improperly in denying the requested compensation because the fee was within the statutory limits of section 925.036(2) and did not exceed the hourly rate set by the chief judge of the circuit. Respondent, on the other hand, asserts that under the applicable statute an attorney is to be compensated for only those hours reasonably expended. This requires a determination by the trial judge whose decision should not be overturned in the absence of an abuse of discretion.

We agree with respondent and the Third District Court of Appeal’s decision in Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980). Under Goldstein a trial court, in awarding fees pursuant to section 925.036,

must find, based on a proper showing, that the appointed attorney reasonably expended a certain amount of hours in representing the indigent client, and, thereafter, compute the fee.

Id. at 188.

In adopting this language in Gold-stein, we hold that in order to establish a fee under section 925.036, an attorney, in the absence of a stipulation agreeing on the hours expended on a case or on the use of an affidavit, must testify as to the time he spent in representing the indigent defendant. In addition, expert testimony must be given on the reasonableness of those hours, in the absence of a stipulation to the use of affidavits. The trial judge, when reviewing this evidence, may decide not to follow the estimates set by the experts, but his discretion is subject to further judicial scrutiny. Of course, any amount he awards may not exceed the statutory maximum allowance.

Although we remand this case for the taking of expert testimony, we hold the inadequate award of $1,500 fell beneath the limit of discretion. Petitioner was faced with defending his client against seven separate felony charges; the fact that the defendant may have been charged in one information or several is immaterial. Under the 1979 law, petitioner could have received $1,500 for each of the seven offenses for which the defendant was charged. Wakulla County v. Davis, 395 So.2d 540 (Fla.1981). Furthermore, although the trial court’s concern for the cost of these services to the general public was laudable, it was not a proper factor to consider in setting the fee. The trial judge’s remark near the conclusion of the hearing that he denied petitioner’s request “based on too much time being spent to prepare the case for a plea” was a conclusion made not only without any expert testimony on which to base it but in apparent contradiction to the circumstances faced by petitioner.

Accordingly, we reverse and remand with directions to consider petitioner’s testimony and that of any experts presented by the parties.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.

      . Petitioner filed a notice of appeal which described his status as that of an appellant. Moreover, the briefs submitted by the parties listed the State of Florida as the appellee. A petition for certiorari, and not an appeal, is the appropriate method of seeking review of an order which awards counsel fees to court-appointed attorneys in a criminal case. See Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DC A 1980). And the county, and not the state, is the proper party. County of Seminole v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980). In the present case, the county attorney’s office appropriately filed the answer brief.

      . Section 925.036(2), Florida Statutes (1979), provides:
      An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:

      (2) For noncapital, nonlife felonies represented at the trial level: $1,500.

      . The Palm Beach Administrative Order 1.011-4/80 provided that compensation to court-appointed attorneys was to be $40 per hour until October 1, 1980, and $50 per hour thereafter.

      . The Supreme Court of Florida recently upheld the constitutionality of section 925.036, Florida Statutes (Supp.1978). Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981). Under Bridges a court lacks the authority to award a fee in excess of the statutory maximum. See also Marion County v. DeBois-blanc, 410 So.2d 951 (Fla. 5th DCA 1982).

      . Perhaps we need to sensitize the phrase “abuse of discretion,” especially when a conscientious trial judge, as in this case, has provided us with all of the reasons for his decision and the authority on which he relies.

      . This case arose prior to the passage of Chapter 81-273, Laws of Florida (1981), which amended section 925.036 by increasing the statutory fee maximum and by forbidding stacking.


author: HERSEY, Judge.

text:
    Donald BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-857.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Donald Bentley, pro se.
    No appearance for appellee.
   ON MOTION TO PROCEED PRO SE

HERSEY, Judge.

Appellant, for whom appellate counsel was appointed by the trial court, has filed in this appeal a motion to proceed pro se. Although appellant desires to handle his own appeal, he indicates that he “will gladly accept the assistance of ... counsel” for “appellant preparation.” In the alternative appellant requests that his court-appointed counsel be discharged.

A defendant has the absolute right to represent himself at the trial court level (i.e. to defend himself). Nevertheless, a trial court must make a proper inquiry to determine whether a defendant is making an intelligent and voluntary decision and is knowingly waiving his right to counsel. The court should consider whether the accused, by reason of age, mental derangement, lack of knowledge or education, would be deprived of a fair trial if allowed to conduct his own defense. Although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be informed of the dangers and disadvantages so that the record will establish that he knows what he is doing and that his choice is made with open eyes. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Goode v. State, 365 So.2d 381 (Fla.1978) cert. denied 99 S.Ct. 2419; Robinson v. State, 368 So.2d 674 (Fla. 1st DCA 1979).

Article I Section 16 of the Florida Constitution provides that in all criminal prosecutions an accused has the right to be heard in person, by counsel, or both. In State v. Tait, 387 So.2d 338, 340 (Fla.1980), the supreme court concluded that this provision “does not embody a right of one accused of crime to representation both by counsel and by himself.” Thus, when an accused voluntarily and intelligently chooses self-representation, he is not entitled to any assistance or advice from counsel. This principle is equally applicable to trial and appellate proceedings.

The right of an accused to self-representation on appeal was recently addressed in Bennett v. State, 389 So.2d 1225 (Fla. 5th DCA 1980). The court determined that an appellant (criminal defendant) does not always have the absolute right to represent himself on appeal. As the court explained:

Here, the appellant requested and accepted the public’s gracious, albeit constitutionally mandated, dole for many professional services, including his trial lawyer and all the attendant costs there, as well as on appeal. Presumably, once the brief in his behalf was filed, where he perhaps thought a loophole would be found to extricate him from his predicament, he found instead there was little chance of his victory, so he decided to attack on a different course. We cannot allow this tactic to succeed lest the orderly administration of this court and the integrity of appellate proceedings be disrupted. See Chapman v. United States, 553 F.2d 886 (5th Cir. 1977). See also United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 770 (1980). Had appellant requested the right to represent himself from the outset and demonstrated himself at least limitedly capable of doing so, we would have decided otherwise. Faretta; Lawrence; United States v. Dunlap, 577 F.2d 867 (4th Cir.), cert. denied, 439 U.S. 858, 99 S.Ct. 174, 58 L.Ed.2d 166 (1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977).

Further, while recognizing the right conferred by Subsection 272 of the Judicial Code, 28 U.S.C. § 394, to parties in all courts of the United States to “plead and manage their own causes personally,” the Supreme Court determined that a prisoner has no absolute right to argue his own appeal, noting that oral argument on appeal is not an essential ingredient of due process. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948). Thus, while there exists a right to self-representation on appeal, it is subject to certain limitations.

Obviously an appellant who is not indigent but who does not wish to pay an attorney cannot be prevented from representing himself on appeal. Likewise, a person who is entitled, because of his indigent status, to a court-appointed attorney, cannot be forced to accept the services of that attorney. (This of course does not mean that an indigent defendant can demand, absent a showing of incompetency, other court-appointed counsel, or, as in Bennett, supra, to represent himself after his attorney had filed a brief.) Nevertheless, prior to an effective waiver of court-appointed appellate counsel, it must be determined that the defendant/appellant’s decision to represent himself is intelligent and voluntary. Since such a determination requires a finding of fact, it should be made by the trial court.

Before a waiver of counsel is accepted, the trial court should inform the defendant/appellant of the dangers and disadvantages of self-representation, which should include but not necessarily be limited to advising appellant that he would be foregoing any assistance by counsel, would be required to meet the appropriate time limitations imposed by the Florida Rules of Appellate Procedure (absent an extension granted on proper motion), and would be restricted to use of legal materials available in the prison law library (if incarcerated). The court should also inquire into the defendant/appellant’s age, mental derangement, lack of knowledge, education or his inexperience in appellate proceedings to make certain that he is aware of the disadvantage under which he is placing himself. See Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982).

In the instant case, appellant informed the trial court both before and after the appointment of counsel that he desired to handle his own appeal. After receiving a letter from the appointed counsel confirming the appointment, appellant, without delay, filed the motion at bar with this court. Accordingly, no briefs have been filed and the appellate proceedings have not been disrupted by appellant’s request to represent himself.

We therefore relinquish jurisdiction to the trial court for thirty (30) days so that it may conduct a hearing to determine whether appellant’s waiver of counsel is a voluntary and intelligent decision.

Counsel’s motion to withdraw will be held in abeyance pending the outcome of those proceedings.

DOWNEY and WALDEN, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Clarence WHITES, Appellant, v. Mamie D. WHITES, Appellee.
    No. 81-171.
    District Court of Appeal of Florida, Fifth District.
    June 23, 1982.
    James C. Collier, Orlando, for appellant.
    James T. Nunn, Ormond Beach, for ap-pellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a real property case where the trial court determined the appellee to be the owner and rightful possessor of the property. The appellant was ejected from the property.

A transcript of the trial was not furnished to this court. Even though we ordered that appellant should cause to be filed a complete record or a stipulated statement pursuant to Florida Rule of Appellate Procedure 9.200(3), the appellant failed to take advantage of the opportunity. The record before this court is inadequate to demonstrate reversible error. We have no choice but to affirm.

AFFIRMED.

ORFINGER and COWART, JJ., concur.