author: ORFINGER, Judge.

text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant/Cross Appellee, v. Terry GOEMBEL et al., Appellees, v. TOMPKINS LAND COMPANY, INC., Appellee/Cross Appellant.
    No. 78-778/T4-87.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      Larry DeFrances, Tallahassee, for appellant/cross appellee.
    Marjorie Bekaert Thomas of van den Berg, Gay & Burke, P. A., Orlando, for appellee/cross appellant.
   ORFINGER, Judge.

Department of Revenue appeals a final judgment awarding appellee, Tompkins Land Company, Inc., an agricultural classification for the tax year 1973. Tompkins cross appeals the trial court’s denial of the agricultural classification for 1974, and the trial court’s disallowance of interest on the refund to which Tompkins is entitled under the final judgment. We affirm.

Appellee Tompkins acquired approximately 130 acres of citrus grove on December 29, 1972, at a price of $1,000,000, or more than $7,000 per acre. For years prior to 1973, the grove had been classified as agricultural lands for tax purposes. Tompkins duly made application for agricultural classification in 1973 and the assessor rejected the application because the purchase price paid by Tompkins was more than three times the prior agricultural value. After exhausting its administrative remedies, Tompkins filed suit for a determination that it was entitled to agricultural classification for 1973, paid the full amount of the tax levied, and requested a refund of any coverage, plus interest.

Prior to the non-jury trial in 1977, the court indicated that it would also try Tompkins’ assertion that it was entitled to the agricultural classification for the tax years 1974, 1975, 1976, and 1977, although no separate suits had been filed for those years, nor had there been any attempt to amend the complaint to include allegations or prayers for relief for those years. At trial, the Department of Revenue moved to strike any request for relief subsequent to 1973. After taking extensive testimony, the court found from the evidence that: (1) Tompkins was entitled to agricultural classification for 1973; (2) Tompkins was not entitled to relief for 1974, because it had filed no separate action to contest the denial, nor had it effectively amended its complaint, but even had it done so, the evidence did not show that it was entitled to the classification for 1974; (3) Tompkins was entitled to no relief for 1975, 1976, or 1977; (4) Tompkins was entitled to a refund of taxes paid in 1973 in excess of the amount which would have been paid if the land had been assessed as agricultural lands, but was not entitled to interest on the refund. The Department has appealed the award of the agricultural classification for 1973, and Tompkins has cross appealed the denial of relief for 1974 and the disallowance of interest on the 1973 refund. Any contentions as to 1975, 1976 and 1977 have been abandoned.

I. The 1973 Assessment.

The facts involved in this controversy are not in dispute. The record shows that the property in question was operated as a citrus grove by the prior owner from 1960 until it was sold to Tompkins in late 1972. The terms of the sale permitted the seller to harvest the 1973 crop and required the seller to maintain the grove through the harvest time. The record shows that the seller did maintain the grove after the sale in the same manner as before, and harvested more than 10,000 boxes of fruit in April, 1973. The grove was otherwise well maintained in 1973. • The record is also clear that the agricultural classification was denied for 1973 solely on the basis of the purchase price.

Lands which are used primarily for bona fide agricultural purposes are entitled to an agricultural classification for tax purposes. Section 193.461(4)(c), Florida Statutes (Supp.1972) creates a presumption that land sold for more than three times its agricultural assessment is not so used, but the presumption may be rebutted upon a showing <*f “. . . special circumstances by the landowner demonstrating that the land is to be continued in bona fide agricultural .” The Department takes the position that once a sale is shown for more than three times the agricultural assessment, the “special circumstances” requirement of the statute is not met by merely showing a continuation of an agricultural use. It asserts that the owner must show something unique and definitely must show a reasonable expectation of meeting investment costs and of making a reasonable profit, relying on cases such as Markham v. Nationwide Development Company, 349 So.2d 220 (Fla. 4th DCA 1977). The record shows that Tompkins’ return on its investment for 1973 was minimal.

While profit is a factor for consideration, it is clear that it is not, by itself, a determinative or controlling factor. The phrase “special circumstances” of Sec. 4(c) of the Statute must be read pari materia with Sec. 3(b) of the samé Statute, which lists seven criteria for determining bona fide agricultural use, of which the purchase price is but one. Therefore, the assessor must consider the other six factors as well. Straughn v.K&K Land Management, Inc., 326 So.2d 421 (Fla.1976). The contention that the economic factor must outweigh actual physical use factors is without merit. Straughn v.K&K Land Management, Inc., 347 So.2d 724 (Fla.2d DCA 1977). Use is still the guidepost in classifying land, although other specifically enumerated factors relative to use may also be considered. Commercial agricultural use simply adds another factor, i. e., profit or profit motive, which may be considered by the tax.assessor in determining whether or not a claimed agricultural use is bona fide. The statute does not limit agricultural classification to commercially profitable agricultural operations. Straughn v. Tuck, 354 So.2d 368 (Fla.1968). The commercial profitability doctrine was apparently laid to rest in Ro-den v. K & K Land Management, Inc., 368 So.2d 588 (Fla.1978), wherein our Supreme Court said:

As the Department of Revenue has done before, it stresses that commercial success is a necessary circumstance for rebuttal. We reject this notion. As we stated in Straughn v. K & K Land Management, 326 So.2d 421 (Fla.1976), “special circumstances” may be drawn from the factors for consideration in the classification process listed in Section 193.461(3)(b). The presence of all or any one factor in particular is not necessary for the presumption’s rebuttal, at 589.

There was ample evidence in the record before the trial court upon which he could base his finding that the property was used for bona fide agricultural purposes in 1973, notwithstanding the minimal profit, and we will not disturb his ruling.

II. The 1974 Assessment.

Tompkins asserts error in the finding of the trial court that it is not entitled to relief for 1974 because no action was filed within the 60-day statutory period. Tompkins asserts that the trial court could have made a determination notwithstanding the absence of a complaint or amendment, because neither the assessor nor the Department of Revenue raised any affirmative defense to the.trial court’s announced intention to consider tax years subsequent to 1973. The Department correctly asserts that the statute in question is jurisdictional, rather than a limitation, and as such cannot be waived. Since Tompkins did not file suit for 1974 and for the subsequent years within the statutory period for filing such suit, the trial court had no jurisdiction to consider those years, and it was not necessary for either the assessor or the Department to assert that position by affirmative defense. Coe v. ITT Community Development Corporation, 362 So.2d 8 (Fla. 1978). The trial court was correct in holding that Tompkins was not entitled to relief for 1974.

III. Interest on the refund.

Tompkins contends that it is entitled to interest on the refund of overpaid taxes, and that the trial court erred in not allowing it. Immunity from claims for interest against the State is an attribute of sovereignty and is implied for the benefit of the State. It may be waived by a statute, either expressly or by implication. Tread-way v. Terrell, 117 Fla. 838, 158 So. 512 (1935). Interest has been allowed against the State where a money judgment has been secured against it, because of the statutory authority for interest on money judgments. Florida Livestock Board v. Gladden, 86 So.2d 812 (Fla.1956). However, interest has not been allowed in tax refund claims, because of the absence of statutory authority. Mailman v. Green, 111 So.2d 267 (Fla.1959); Hansen v. Port Everglades Steel Corporation, 155 So.2d 387 (Fla.2d DCA 1963); State ex rel. Four-Fifty Two-Thirty Corporation v. Dickinson, 322 So.2d 525 (Fla.1975). There being no statutory authority for the allowance of interest on a tax refund, the trial court was correct in its denial of that claim.

There being no error demonstrated in the findings of the trial court, the final judgment is

AFFIRMED.

CROSS and SHARP, JJ., concur.

      . Sec. 193.461(4)(c), Fla.Stat. (Supp.1972): (c) Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agricultural, this presumption may be rebutted.

      .Sec. 193.461(3)(b),Fla.Stat. (Supp.1972): “(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. ‘Bona fide agricultural purposes’ means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
      1. The length of time the land has been so utilized;
      2. Whether the use has been continuous;
      3. The purchase price paid;
      4. Size, as it relates to specific agricultural use;
      5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
      6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
      7. Such other factors as may from time to time become applicable.”

      . Sec. 194.171(2) Fla.Stat. (Supp.1972): “No action shall be brought to contest a tax assessment after sixty days from the date the assessment roll is certified for collection under § 193.122(2).”


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Louis E. CORLEW, Appellee.
    No. 79-736.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Davis G. Anderson, Jr., and Robert Foster, Jr., Tampa, for appellee.
   SCHEB, Judge.

Does a defendant’s waiver of his rights to speedy trial under Florida Rule of Criminal Procedure 3.191 still apply after the state files an amended information charging a crime arising out of the same criminal episode which formed the basis of the first information? Under the circumstances of this case, we hold it does.

After Louis E. Corlew was arrested on January 4, 1978, the state filed an information charging him with unlawful possession of more than one hundred pounds of cannabis in violation of Section 893.13(l)(e), Florida Statutes (1977). Since the information charged a felony, the 180-day period for speedy trial under Rule 3.191(a)(1) applied. The court set trial for April 17. On that date Corlew requested and was granted a continuance; hence, the 180-day requirement of the speedy trial rule was no longer applicable. State v. Cullen, 253 So.2d 861 (Fla.1971).

On September 1, 1978, the First District Court of Appeal held that possession of more than one hundred pounds of cannabis is a second degree felony only where the cannabis is possessed with intent to sell. Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). Thereafter, on November 9, the state amended its information to allege that Corlew possessed the contraband “with intent to deliver or sell.”

On March 2, 1979, at the state’s request the court set Corlew’s trial for April 16. On that date Corlew moved to dismiss the charge on the ground that the state filed its amended information more than 180 days after the commencement of the speedy trial period. The trial court granted the motion stating that by its amended information, the state had charged Corlew with a new offense moré than 180 days after his arrest. We think the trial court erred; we reverse.

The state contends that Corlew’s waiver of his right to be tried within 180 days was effective as to the state’s amended information since the amended information was based on the same conduct or criminal episode as the original information. Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978); State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976). Corlew, however, seeks to sustain the trial court’s ruling on the basis of State v. Boyd, 368 So.2d 54 (Fla. 2d DCA 1979). He asserts that Boyd stands for the proposition that a speedy trial waiver does not apply to an amended information charging a more serious crime than the original information. We disagree.

Although Boyd involved a second information which charged the same crime as the original information, the basis for this court’s decision was that the charge in both informations arose out of the same criminal conduct. Id. at 55. Moreover, in Boyd this court cited Homer which held that a waiver under an information charging a defendant with driving while intoxicated applied to a second information charging vehicular homicide. Since the second information in Homer charged a more serious crime than the original information and Boyd relies on Homer, Boyd does not support Corlew’s position.

Finally, the state’s amendment was understandable in view of Aylin. The state acted promptly and Corlew did not show that the amendment had prejudiced him in preparing his defense. In fact, the court granted Corlew two continuances following the amendment.

Accordingly, we reverse the order dismissing the amended information and remand to the trial court for further proceedings consistent with this opinion.

GRIMES, C. J., and HOBSON, J., concur.

      . This court aligned itself with the First District Court of Appeal in Reinersman v. State, 382 So.2d 325 (Fla. 2d DCA 1979).


author: PER CURIAM. ANSTEAD, Judge,

text:
    Janie Gonzalez GONZALEZ, a/k/a Janie Gonzales Gonzales, Appellant, v. STATE of Florida, Appellee.
    No. 79-886.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Norman D. Zimmerman of the Law Offices of Norman D. Zimmerman, Pompano Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The record reveals that the defendant was charged with possessing a weapon in her neighbor’s yard. At trial the defendant claimed that she was in her own yard at all times but admitted that she had a weapon which she had taken away from her father earlier in the day and brought to her home.

In final argument the state argued that since defendant admitted carrying the concealed weapon from her father’s home to her own home, she had admitted the crime and the jury no longer had to worry about the dispute as to whether the defendant was on her own or her neighbor’s property. The tri^l court overruled objections to this argument and further refused to charge the jury that the state was limited to proving that the offense took place at the particular location set out in the state’s statement of particulars.

It is true that the statement of particulars described the location as being “at or near” the neighbor’s property. However, under the instructions given and the argument of the prosecutor, the jury could have convicted the appellant for possessing the weapon away from the vicinity of her neighbor’s house, clearly not a crime for which she was charged and tried. See generally Hicks v. State, 362 So.2d 730 (Fla.3d DCA 1978); Stevens v. State, 351 So.2d 1077 (Fla.3d DCA 1977); Falstreau v. State, 326 So.2d 194 (Fla.3d DCA 1976); Fitzgerald v. State, 227 So.2d 45 (Fla.3d DCA 1969). I think it was error to refuse an instruction on the statement of particulars and I would reverse and remand for a new trial.


author: LARRY G. SMITH, Judge.

text:
    TRAVELODGE INTERNATIONAL, INC., a California Corporation, and Travelodge International, Inc., a California Corporation, d/b/a Balboa Supply, Appellants, v. EASTERN INNS, INC., a Florida Corporation, William Ackerman, Melvin Livingston, and Meyer Jaffee, Appellees.
    No. LL-64.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Rehearing Denied May 8, 1980.

      Douglas H. Morford, B. Thomas Whitefield of Ulmer, Murchison, Ashby, & Ball, Jacksonville, for appellants.
    Allen C. D. Scott, II of Maxwell & Scott, Jacksonville, for appellees.
   LARRY G. SMITH, Judge.

Travelodge International, Inc., appeals from a final judgment entered after a jury trial in which the jury awarded damages of $25,575.00 to appellees, Eastern Inns, Inc., and the individual defendants, on their counterclaim. Travelodge relies for reversal primarily upon its contentions (1) that Section 817.416(2)(a)(l), Florida Statutes, providing for recovery of damages against a franchisor for intentionally misrepresenting the prospects or chances for success of a franchise, must be construed as requiring the same proof as is required for recovery in actions for common law fraud; and (2) that the absence of such evidence requires reversal of the judgment recovered by ap-pellees. We disagree.with appellant’s contentions with respect to its construction of the statute, and we further find that the evidence was sufficient to be submitted to the jury for determination of appellees’ counterclaim for recovery under the statute. Finding no error in these and other points raised by appellants, we affirm.

Travelodge, after considerable negotiation and discussion with Eastern, sold to Eastern a franchise under which Eastern received a license to operate a Travelodge Motel in Jacksonville. Upon nonpayment of fees and other charges claimed by Tra-velodge, Travelodge sued Eastern and the individual guarantors on the agreement. Eastern and the individual appellees counterclaimed, seeking recovery of a $15,000 franchise fee and other expenses, alleging false and fraudulent representations by Travelodge in the negotiations and discussions leading up to their purchase of the franchise. The trial judge directed a verdict on appellees’ counterclaim so far as it sought recovery under the theory of common law fraud, but granted appellees’ motion to amend their counterclaim by specifically referring to the statute, Section 817.-416, Florida Statutes, as a basis for the cause of action. The trial judge was of the opinion, with which we agree, that the allegations of the counterclaim and the evidence presented were sufficient for an action under the statute, and amendment of the counterclaim was proper. Rule 1.190, Florida Rules of Civil Procedure. The jury returned a verdict denying appellant-Tra-velodge any recovery on its claims for breach of contract, and awarded damages as indicated above on appellees’ counterclaim for intentional misrepresentation under the statute.

The statute, Section.817.416(2)(a)(l), provides in part:

(a) It is unlawful, when selling or establishing a franchise or distributorship, for any person:
1. Intentionally to misrepresent the prospects or chances for success of a proposed or existing franchise or distributorship; .

We are unable to agree with appellant’s contention that the showing required for recovery of damages under the statute is the same as in an action for common law fraud. We would agree that, generally speaking, the word “intentionally” would require a showing that the misrepresentation in question was made knowingly and not innocently or negligently. We accept the interpretation of the word “misrepresent” as defined in Section 470(1), Restatement Contracts, as follows:

Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.

The point of departure, we believe, in applying the ordinary rules of fraud and misrepresentation, is in the subject of the misrepresentation made actionable under the statute. Generally speaking, common law fraud requires proof of misrepresentation of a material past or presently existing fact. Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408 (1930); Harrington v. Rutherford, 38 Fla. 321, 21 So. 283 (1896). The statute, on the other hand, applies to misrepresentations concerning the “prospects or chances for success” of the proposed business enterprise, clearly referring to something that can only be expected to happen in the future. In actions for common law fraud, as appellants point out, a representation of a future intention is actionable only where the representation is false, that is, the representation of future intention is made at a time when no such intention exists. Homeseekers Realty Company v. Meanaer, 102 Fla. 7, 135 So. 402 (1931); Freland v. Orange Groves of Florida, 377 F.Supp. 690 (M.D.Fla.1974); Bisset v. Ply-Gem Industries, Inc., 533 F.2d-142 (5th Cir. 1976). Statements which are tantamount to an estimate of opinion are not actionable unless the party making the representations does so with an intent to prevent the party relying thereon from making an independent investigation of the facts. Upchurch v. Mizell, 50 Fla. 456, 40 So. 29 (1905); Stackpole v. Hancock, 40 Fla. 362, 24 So. 914 (1898). Compare Butts v. Dragstream, 349 So.2d 1205 (Fla. 1st DCA 1977). Further, appellants assert, statements of future expectations afford no basis for relief where the parties are dealing at arms length. Hart v. Marbury, 82 Fla. 317, 90 So. 173 (1921); Smith v. Hollingsworth, 85 Fla. 431, 96 So. 394 (1923); Bower v. Selecman, 52 So.2d 680 (Fla.1951). Appellants also refer to the decision in Brod v. Jernigan, 188 So.2d 575 (Fla. 2nd DCA 1966), in which the court stated:

A promise that is merely unfulfilled is not necessarily a false promise. A promise to do something in the future, even if made as a representation to induce the other person to enter into a contract, does not amount to fraud in the legal sense,

We conclude that the statute in controversy here makes conduct actionable which is quite distinct from that to which the authorities furnished by appellants is applicable. The authorities cited by appellants illustrate the necessity, in actions for common law fraud, for proof of a deliberate and intentional false statement of material existing fact. The statute, on the other hand, by focusing upon misrepresentations as to the “prospects or chances for success”, concerns itself with what is said today about what probably or most likely will happen tomorrow. If the total effect of appellants’ conduct was to intentionally misrepresent what would be the probable or most likely prospects for success of the motel enterprise, based upon the facts and circumstances which were known by appellant, it may be liable for damages under this statute. We hold that recovery under the statute may be had upon proof of intentional words or conduct by the franchisor, concerning the prospects or chances of success of the enterprise, which were relied upon by the franchisee to his detriment, and which are not in accordance with the facts. We conclude that the trial judge did not commit error in failing to direct a verdict in favor of appellant and against appel-lees on their counterclaim.

We turn next to the contention that the evidence presented by appellees was insufficient to support their recovery of damages under the statute. The motel’s lack of success, under the Travelodge license, was clearly demonstrated by appel-lees. A formal franchise application, along with an initial fee of $2,500.00, was submitted in early March, 1972. In January, 1973, Eastern paid Travelodge the remaining $12,500.00 of the $15,000.00 franchise fee, commenced construction, and opened its 150-room motel fully staffed for business in April, 1974. Daily occupancy was extremely poor, the average for the first eight months being 27.6%. Only one percent of rentals during the period were from referrals. Toward the end of 1974, with the motel approaching bankruptcy, the management decided to convert to another system, and in January, 1975, Eastern gave notice to Travelodge that it was terminating the franchise. During the ensuing eleven months, operating under a different franchise, the daily occupancy average jumped to 63.9%.

It is undisputed that Travelodge, having experienced success in the operation of a system of west coast motels, made a decision to substantially expand its operations, particularly with respect to its facilities in the eastern United States. There was testimony which established that the expansion plan contemplated a system of “full facility” Travelodge motels — facilities with a minimum of 100 rooms, a restaurant, swimming pool, lounge, open twenty-four hours a day — up and down the eastern travel routes. The evidence would support the finding that the existence of such a system, capable of furnishing referrals to Eastern’s new motel in Jacksonville, as other large motel chains did for their members, was the main ingredient of the franchise package contracted for by Eastern. The evidence would support the further finding that the “system”, contemplated by Eastern as the primary consideration for the franchise fee, was virtually nonexistent at the time the final fee was paid (so far as the eastern United States was concerned), and did not subsequently materialize.

Appellant’s argument that there was no evidence that Travelodge’s statements as to its intentions were proven false misses the mark. The evidence was such that the jury could have found that Travelodge’s brochures and the declarations of its agents presented the promised program of development and expansion of the “system” as if it had become reality. The license agreement itself commenced with the following confident pronouncement:

WHEREAS TRAVELODGE had developed and implemented a plan for providing, and has provided, a network of motor hotels and related services of high quality and of distinguishing characteristics (hereinafter referred to as the “System”), including (but not limited to) the following:
******

It is no defense to the charge of intentional misrepresentation for Travelodge to insist that the foregoing statement was true, that Travelodge did in fact have a plan, and had provided a network of motels and a “system”, as defined in the agreement. It had no such network and system that could make a Jacksonville, Florida motel a part of the “success story” so well documented in Travelodge’s pre-franchise literature furnished to Eastern. The expansion plan actually never got “off the ground” so to speak, and the evidence at trial conclusively proved that the “plan” itself was thereafter abandoned. In fairness, it should be noted that Travelodge presented evidence tending to show that its failure to complete its planned program of expansion was caused by the 1973 OPEC oil embargo, and its attendant effects upon the motel industry, and upon economic conditions in general. Travelodge also points out that one of Eastern’s corporate officials, Randall C. Dix, Sr., who personally conducted the franchise negotiations, was aware when the franchise application was submitted for approval that Travelodge’s planned system of “full facility” motels in the eastern United States had not been completed. The evidence discloses also that Dix was highly knowledgeable and experienced in the motel industry, which would tend to support Travelodge’s position that he could not have been misled by Travel-odge’s promotional efforts. We conclude, however, that these contentions presented jury issues, and upon examination of the entire record we find evidence sufficient to support the jury verdict in this case.

The trial judge’s failure to give the jury instructions requested by appellant was not reversible error. Examination of these instructions reveals that they were addressed, for the most part, to appellant’s defense of the common law fraud claim, as to which the trial judge had already ruled in appellant’s favor. We find no need to discuss appellant’s point regarding the liquidated damages clause of the agreement, in view of the jury’s verdict finding no breach of contract liability on the part of appellees.

We find no other issues requiring discussion other than the failure of the final judgment to reflect a set-off of $1,159.61, stipulated to by the parties. This sum reflects amounts owed by appellees to Balboa Supply and must be deducted from the amount of the judgment awarded to appel-lees.

The final judgment appealed is affirmed, with directions that the amount due be modified in accordance with the stipulation of the parties.

McCORD and ERVIN, JJ., concur.


text:
    BELCHER OIL COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. OO-379.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Joseph C. Jacobs, James R. McCachren, Jr. and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Cecil L. Davis, Jr., Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Belcher Oil Company appeals the Department of Revenue’s order assessing a tax deficiency, penalties and interest, under taxing statutes relating to sales of special fuels, Section 206.87(1), Florida Statutes (1975). Belcher Oil contends (1) that the sales were exempt from taxation; (2) that the Department’s rule requiring Belcher to obtain an exemption or resale certificate from its purchaser to receive the exemption, is invalid; (3) that the Department’s assessment of penalties is invalid because of the absence of fraudulent or intentional nonpayment; (4) that the penalty should be excused because Belcher Oil in good faith paid sales tax, rather than the special fuels tax; and (5) that any special fuels tax assessment should be reduced by the amount of sales tax paid by Belcher Oil. We conclude that the appellee-Department of Revenue correctly ruled on points 1, 2 and 3. The issues presented by points 4 and 5 require reversal and remand for further proceedings.

In Pioneer Oil Company, Inc. v. State of Florida, Department of Revenue, 381 So.2d 263 (Fla. 1st DCA 1980), this court held that in order to be entitled to exemption from the special fuels tax imposed under Section 206.87(1), Florida Statutes (1978 Supp.), it is necessary for the seller to obtain a resale or exemption certificate from the purchaser, as required by the Department’s rule 12B-5.03. In the Pioneer Oil case, although all the purchasers furnished resale certificates to Pioneer, the “resale” exemption provided for by Section 206.87(4)(a), Florida Statutes, did not apply, since only a dealer can purchase the fuel for resale, and none of them were licensed as dealers as required by Section 206.89, Florida Statutes. The court upheld the Department’s rule requiring the seller to obtain a resale certificate from the purchaser showing the dealer’s license number as a prerequisite to claiming the exemption. The Pioneer Oil case disposes of Belcher Oil’s contention with respect to its sales to Florida Petroleum, Inc., since sales to Florida Petroleum were for resale purposes, and Florida Petroleum was not a licensed dealer. We hold, as did the court in Pioneer Oil that the Department’s rule merely implements the taxing statutes, and does not exceed the authority conferred by Section 206.59(1), to make rules and regulations having the force and effect of law governing reports and accounts by persons dealing with motor fuel in the State, so as to enable the Department to determine liability for the tax.

We also affirm the Department’s ruling with respect to sales made to Zamora Truck and Car Services, and Roberts Equipment Company. Belcher Oil did not obtain resale certificates or exemption certificates from these purchasers. Of course, Zamora and Roberts, not being licensed dealers as required by Section 206.89, Florida Statutes, were not authorized to issue resale certificates. Belcher Oil also failed to obtain an exemption certificate from Zamora or Roberts to show that the fuel was being purchased for an exempt purpose under Section 206.87(4)(a), Florida Statutes (1975). The Department’s Rule 12B-5.03(1) provides that any distributor or dealer must maintain in his files a sales invoice containing complete information with respect to the sale; and with respect to any sale for which exemption is claimed (unless the dealer has obtained from the purchaser a resale or exemption certificate) the sales invoice must show “the exempt purpose for which the special fuel was purchased”, and that the special fuel was not placed into the receptacle connected to the fuel supply system of a motor vehicle. Having failed to comply with the rule, Belcher Oil has not shown its entitlement to claim the sales were exempt. We reject Belcher Oil’s con- ■ tention that it should be exempt from the tax because of misrepresentations by Zamora and Roberts, relied upon by Belcher Oil, that the fuel was being purchased for exempt agricultural use (Section 206.87(4)(a), Florida Statutes (1975)). In fact, Zamora and Roberts used or sold this fuel for road use, clearly nonexempt uses under the statute. We find no basis upon which to excuse Belcher Oil’s liability for the tax. The statute not the rule, imposes the tax. The rule in this instance merely furnishes a means whereby the dealer or distributor may be assured of obtaining exemption from the tax. The sales were in fact taxable, and the Department correctly denied the exemption.

Our decision does not conflict with Silver Sand Co., etc. v. Department of Revenue, 365 So.2d 1090 (Fla. 1st DCA 1979), which involved the interpretation and application of statutory provisions and rules which have been amended, and significantly different facts. We have also considered the recent case of Anderson v. Department of Revenue, 380 So.2d 1083 (Fla. 3rd DCA 1980). The Anderson case dealt with questions arising under the sales tax statute, Chapter 212, Florida Statutes. The court there held that where the sales in question were in fact for an exempt purpose, it would be “grossly unfair not to allow the taxpayer to show the true situation”. Examination of the opinion discloses circumstances quite different from those in the case presently before this court. In the Anderson case the court pointed out that a tax had already been collected from the users of the property which was the subject of several of the sales covered by the assessment, and further, it appeared that the Department of Revenue had itself changed its position with regard to the necessity for obtaining a dealer’s certificate at the time of sale. It had apparently been the Department’s practice to allow a purchaser to register as a dealer and submit a resale certificate some months after the date of sale, thereby retroactively qualifying the sale as exempt. This change of position on the part of the Department was obviously a significant factor in the court’s decision reversing the tax assessment in that case. Of course, we find none of these special circumstances present in the case at bar.

We agree with the ruling of the Department that the absence of fraud, or intentional misreporting or nonpayment of the tax does not authorize the Department to excuse the penalty required by Section 206.94(1), Florida Statutes (1976). The statute provides that the Department “shall” determine and collect a penalty of 10% for any “incorrect or fraudulent” report. The use of the disjunctive “or”, together with the preceding language which subjects the dealer to the penalty if he “neglects or refuses” to file reports as required by law, leads us to conclude that the absence of fraud or intent is immaterial. We find no support in Sugar Cane Growers Coop of Florida v. Florida Revenue Commission, 179 So.2d 393 (Fla. 2nd DCA 1965), for appellant’s argument that the penalty statute is “discretionary”. The Sugar Cane case dealt with a sales tax penalty under Section 212.-12(2), Florida Statutes, (1965), which the court found was a “discretionary penalty”. The court was undoubtedly referring to subparagraph (5) of Section 212.12, which provided that for good cause shown the Department was authorized to “compromise penalties after its investigation reveals that the penalty would be too severe or unjust”. We find no such language with respect to penalties under Section 206.94(1).

The remaining issues have to do with appellant’s contentions that because of its erroneous payment of sales tax, instead of special fuels tax, it should be given credit for this payment against any special fuels tax owed, and that such credit should be applied to the total special fuels tax assessment prior to the imposition of penalties and interest. The final order of the hearing officer, which was approved by the Department, recites that Belcher Oil paid sales tax of $18,589.53 on the sale of 538,030 gallons of special fuel. Belcher Oil’s petition for an administrative hearing states that it applied for a refund of those sales taxes, and a copy of its application is attached to its petition. We find no additional facts on this subject either in the stipulated record, or in the hearing officer’s order, and there is no statement in the order under “conclusions of law” relating to the sales tax payment. The one-sentence recommendation with which the hearing officer concludes his order is as follows:

RECOMMENDED:

That respondent’s assessment be upheld with respect to petitioner’s tax deficiency, penalty and interest as set forth in the assessments with adjustments to be made for payments paid by petitioner under the “sales tax” theory.

The final order is deficient both in findings of fact and conclusions of law concerning the sales tax issue, and we are unable to determine what disposition was or was intended to be made of this issue. It goes without saying that adequate presentation of the issues before the hearing officer, from both a factual and legal standpoint, is an essential prerequisite to review of agency action in this court. Here we are left to speculate as to the factual basis for the positions of each party, the principles of law applied, and the results reached by the hearing officer in the resolution of the controversy. Under these circumstances, we find that the order does not comply with the requirements of Sections 120.57, 120.59, Florida Statutes, and is subject to remand for further proceedings under Section 120.-68, Florida Statutes. General Development Corp. v. Division of State Planning, Dept. of Administration, 353 So.2d 1199 (Fla. 1st DCA 1977); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Stuckey’s of Eastman, Ga. v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976); Gentry v. Department of Professional and Occupational Regulations, 283 So.2d 386 (Fla. 1st DCA 1973); Veasey v. Board of Public Instruction, 247 So.2d 80 (Fla. 4th DCA 1971).

The order appealed from is affirmed with exception of .those portions relating to the effect, if any, of the erroneous sales tax payment, as to which the order is reversed and the cause is remanded for further proceedings including the presentation of evidence as the parties may deem advisable.

McCORD and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    Dee Willis CAWTHON, Appellant, v. STATE of Florida, Appellee.
    No. OO-423.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

This appeal is from appellant’s conviction and sentence of attempting to effect the death of one George Neville by the use of a firearm. We affirm.

Appellant admitted that he committed the offense in both a pretrial taped confession and during his testimony at trial. Under both versions of appellant’s story, a J. C. Cotton solicited appellant to kill Mr. Ne-ville and gave him a firearm. In the taped confession, which was admitted into evidence, appellant stated he agreed to kill Mr. Neville for the sum of $100.00. At trial, appellant testified that he agreed to kill Mr. Neville only because J. C. Cotton had threatened to harm members of appellant’s immediate family if appellant did not kill Mr. Neville.

Appellant urges that the trial court erred in refusing to give the following jury instruction:

If you, the jury, believe from the evidence that members of the defendant’s immediate family were subject to a real, imminent, and impending danger, or that under all the circumstances shown in evidence that the defendant had reasonable grounds to believe that such danger to members of the defendant’s immediate family was real, imminent, and impending, and did so believe at the time the defendant shot the victim, and that the defendant shot the victim because of such belief, then you must find the defendant not guilty.

The trial court denied the coercion instruction on two grounds. First, the evidence did not show that the danger was imminent or impending within the meaning-of the case law. Second, the availability of the defense should not be extended to the commission of, or the attempted commission of, homicide. The trial court properly denied the requested instruction for these two reasons.

The evidence does not show a threat of imminent or impending harm to appellant or to a member of his family. Even if the statements of J. C. Cotton had been construed by the jury as a threat, this threat was of some possible future harm. Appellant had adequate time to warn his relatives of the threat and to contact the appropriate authorities. Under these facts, appellant was not entitled to the coercion instruction.

The coercion defense is not available in a case of homicide or attempted homicide. The coercion defense has received recognition in two Florida cases. Hall involved the use of the defense in a perjury trial. Koontz involved an attempted robbery. The defense has never been recognized in a Florida case involving homicide or attempted homicide. The general authority is that coercion does not excuse or justify the murder or attempted murder of an innocent third party. We align ourselves with that general authority.

AFFIRMED.

MILLS, C. J., and ERVIN, J., concur.

      .Q. What did you tell Mr. Cotton when he asked you if you would do this? [kill Mr. Neville]
      A. I said, “No.” But, he had made a threat that I had no choice. He didn’t make the threat upon me, but he made the threat upon my immediate family. And, he told me if I didn’t take that direction that he wanted me to do, he said that he was going to do something to someone in my family. So, I took him at his word.
      Q. Did he mention any of your family members by name?
      A. No, he didn’t call no specific person. He just said, “Someone in your family.”
      Q. What did he say he would do to them?
      A. He said it was easy to pick one of them up, you know, and do whatever he wanted to do. He didn’t say exactly what he would do.
      Q. What did you understand, from what Mr. Cotton told you, that he meant?
      A. I took it as though he was threatening by assassinating one of them, you know.

      . Hall v. State, 136 Fla. 644, 187 So. 392 (1939) and Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967).

      . See, e. g., 22 C.J.S. Criminal Law § 44 and Perkins, Criminal Law, Compulsion, at 951.


author: PER CURIAM. ERVIN, Judge,

text:
    Willie GORDON, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. PP-284.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Willie Gordon, pro se, for petitioner.
    Michael H. Davidson, Gen. Counsel, Gainesville, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of habeas corpus and response thereto. The petition asserts errors in the determination of petitioner’s presumptive parole release date. Administrative remedies under Florida Statutes, § 947.173 have been exhausted. On consideration of the petition, response and the petitioner’s traverse, and attachments thereto, we find petitioner has failed to show his entitlement to the relief sought. Accordingly, the petition is DENIED.

MILLS, C. J., and BOOTH, J., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I dissent and would require the Commission to supplement its Response to our Show Cause Order by explaining how or if it complied with the procedural requirements of its own rule by allowing the Petitioner to rebut allegations that the circumstances of his offense were more severe than his conviction .indicates before aggravating his matrix time range based on those allegations. Fla.Admin.Code Rule 23-19.01. Compare, Lupo v. Norton, 371 F.Supp. 156 (D.C.Conn.1974).


author: PER CURIAM.

text:
    PASCO COUNTY and Maryland Casualty Company, Appellants, v. John S. GREEN, Appellee.
    No. QQ-346.
    District Court of Appeal of Florida, First District.
    April 10, 1980.

      Ted R. Manry, III and Richard D. Senty, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    H. Shelton Philips, of Kaleel & Kaleel, St. Petersburg, for appellee.
   PER CURIAM.

Appellee was awarded workmen’s compensation benefits for his fifty percent permanent partial disability of the body as a whole based upon a diminution of wage earning capacity. Appellee also received temporary total disability benefits from October 9, 1975, until May 24, 1979.

Appellant alleges as appellee’s wage earning capacity and temporary total disability benefits were not substantiated by competent and substantial evidence, appel-lee should only be allowed to recover his lower anatomical rating of twenty-five percent. Appellant further asserts appellee’s temporary total disability benefits awarded from April 6, 1976 through May 5, 1977, should be eliminated as appellee was employed full-time during that period. We agree.

Pursuant to F.S. 440.15(3)(u), disability is defined as either physical impairment or diminution in wage earning capacity, whichever is greater. However, if permanent disability in excess of the physical impairment is claimed, claimant must not only establish that loss of wage earning capacity exceeds anatomical disability by competent and substantial evidence but must test such wage earning capacity in the open labor market by a good faith work search, after MMI has been reached. Exxon v. Alexis, 370 So.2d 1128 (Fla.1978) and Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975).

In the instant case, we do not find appel-lee’s actions of calling a prospective employer amount to an adequate job search. Accordingly, appellee should be limited to workmen’s compensation benefits based upon his anatomical disability rating.

Furthermore, as appellee worked full-time from April 6,1976 to May 5,1977, temporary total disability benefits for this period of time should be eliminated. Concord v. Romano, 159 Fla. 1, 30 So.2d 495 (1947).

The order is hereby reversed to the issues raised by appellant on appeal and the case remanded to the judge of industrial claims for proceedings consistent with this opinion.

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.


text:
    Charles B. JOHNSON, Appellant, v. Adeline S. JOHNSON, Appellee.
    No. PP-84.
    District Court of Appeal of Florida, First District.
    April 11, 1980.

      Gregory M. Anchors of Moore & Anchors, P. A., Niceville, for appellant.
    David W. Palmer, II, Fort Walton Beach, for appellee.
   PER CURIAM.

The final judgment dissolving the marriage between the appellant and the appel-lee incorporated the following stipulation:

The wife acknowledges that she needs an income of $400.00 per month which said HUSBAND shall pay at the rate of $100.00 per week, but that the monthly support payments may be reduced by a proportional amount on all rentals (home excluded) from property transferred

The marriage was dissolved on August 21, 1974 and in August of 1976 the parties attempted to modify the stipulation agreement by reducing the monthly payments due thereunder to $200.00 per month. The appellant failed to live up to either the terms of the initial stipulation or the attempted modification and a motion on rule to show cause was filed.

Appellant contends on appeal that the judge erred in computing his arrearage and in the award of a $350.00 fee to the appel-lee’s attorney.

The appellee confesses error relative to the award of attorney’s fee made without the benefit of evidence relative to reasonableness. On this issue the order must be reversed and the cause remanded to the judge for the taking of further evidence.

The judge determined that the appellant had not lived up to the terms of the attempted modification and computed his arrearage at the rate of $100.00 per week for 25 weeks. He allowed the appellant credit for $300.00 rent received by the ap-pellee and $400.00 paid by the appellant leaving an arrearage of $1,800.00. It appears from the record that during the 25-month period considered by the judge the appellee received $450.00 rental from Mr. L’Orange. In February she received a $40.00 payment from a lot leased to her son. The record reflects that she received additional rentals from a second son, but it is unclear whether these rentals were received during the six-month time span. In any event, it is clear that rents during this period exceeded the $300.00 credit reflected in the order. Although the discrepancy appears minimal, it does require clarification. The order is remanded on this issue for that purpose.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    Donald CHANCE, Appellant, v. STATE of Florida and the Honorable W. Fred Turner, Appellees.
    No. PP-220.
    District Court of Appeal of Florida, First District.
    April 11, 1980.
    Michael Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appel-lees.
   PER CURIAM.

Chance appeals from an order of contempt adjudging him in contempt for his refusal to answer three questions and sentencing him to three consecutive six-month terms in jail. We affirm in part, reverse in part and modify the sentence accordingly.

In a deposition, taken before the court, Chance, a witness, refused to answer the following questions:

Where did you get the marijuana from? Q-
. I did get it from another person and I would rather not name that person at this time. A.
* * • * * * *
Q. Who placed it there?
A. I testified I can’t answer that.
'
* * * * * *
Q. With whom did you make the arrangements before hand on the packaging of the marijuana?
A. I have already said I could not answer that.

After each refusal, the judge held Chance in contempt. This was error.

Where a witness draws the lines of refusal . . .by declining to answer questions within a generally defined area of interrogation, the prosecutor cannot multiply contempts by further questions within that area.

Yates v. United States, 355 U.S. 66, 73, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957).

The questions here clearly fell within the same subject area and defendant had indicated he would not answer questions regarding this area. Only one adjudication of contempt was proper.

Accordingly, we affirm the adjudication of contempt for Chance’s refusal to answer the first question, reverse the subsequent adjudications and modify the sentence to one six-month term in jail.

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


text:
    Joseph WHALEY, Appellant, v. STATE of Florida, Appellee.
    No. PP-387.
    District Court of Appeal of Florida, First District.
    April 11, 1980.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Whaley appeals his sentence of 30 years imposed under the enhanced penalty statute, raising the procedural issue that the trial court failed to specifically find from a preponderance of the evidence that it was necessary for the protection of the public to sentence the appellant to an extended term. Upon consideration of the record and precedent on this point, we conclude such a finding is required. § 775.084(3) and (3)(d), Fla.Stat. (1979); Levy v. State, 375 So.2d 606 (Fla. 2d DCA 1979); Grimmett v. State, 357 So.2d 461 (Fla. 2d DCA 1978). See Adams v. State, 376 So.2d 47, 58-59 (Fla. 1st DCA 1979); Fry v. State, 359 So.2d 584 (Fla. 2d DCA 1978). The sentence is therefore vacated and the cause remanded for appropriate findings and imposition of sentence accordingly.

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


text:
    Handy GEORGE, Jr., Appellant, v. WOODVILLE LUMBER COMPANY and Travelers Insurance Company, Appellees.
    No. QQ-49.
    District Court of Appeal of Florida, First District.
    April 11, 1980.

      Edward S. Stafman of Patterson & Traynham, and Stephen M. Slepin of Slepin & Slepin, Tallahassee, for appellant.
    Lloyd C. Leemis of Boyd, Jenerette, Leemis & • Staas, P. A., Jacksonville, for appellees.
   PER CURIAM.

Claimant appeals an order of the judge of industrial claims, which dismissed his claim for compensation. The judge found that the statute of limitations barred the claim and that claimant did not sustain an injury arising out of and in the course of his employment. We affirm.

Claimant was injured in an automobile accident which occurred at about 7:45 a. m. on September 5, 1972, while he was on his way to work in his automobile. Claimant’s regular work hours were from 8 a. m. until 5 p. m. At the time of the accident, claimant was furnishing two of his fellow employees, whom he supervised, transportation to work. Claimant contended that he was instructed by his employer to transport these fellow employees to work; however, claimant’s employer denied having given such instructions to claimant. Claimant admitted that his employer did not furnish him gas or money to transport the other employees to work.

As a general rule, injuries sustained by an employee when going to or coming from his regular place of work are not considered to have arisen out of and in the course of his employment. This rule, however, is subject to numerous exceptions. See e. g., Larson, 1 Workmen’s Compensation Law §§ 15.00,16.00,17.00,18.00 et seq. (1978); Schneider, 8 Workmen’s Compensation Text, § 1710 et seq. (3d Ed.1951). After thorough review of the record, the applicable law, and the arguments ably presented by counsel, we agree with the judge’s determination that the present accident does not come within any of the exceptions to the going and coming rule. Claimant was not compensated or reimbursed by his employer for the transportation to work of either himself or his fellow workers. Claimant was not performing any special errands or duties for his employer at the time of the accident. Claimant’s destination, route, and mode of transportation were of his own choosing. Nor was claimant’s transportation to and from work an incident to or part of his contract of employment.

Lindblom v. Chase Federal Savings and Loan Association, 344 So.2d 558 (Fla.1977) appears analogous. Therein, the judge of industrial claims found as follows:

I find that the employee, Marta Lind-blom, worked as a teller for the employer, Chase Federal Savings and Loan Association, of Miami Beach, Florida. She was involved in an automobile collision on or about December 18, 1974, at or near the intersection of Southwest 117th Avenue and Southwest 112th Street. She was at the time in the process of returning to her home, engaging in a car pool, and on the specific occasion, having driven Diana Liebgold to her destination. I find that the employee owned and operated her own motor vehicle at the time of the accident; that she received no compensation directly or indirectly from her employer for participating in a car pool; that the employer did not form or control the car pool; that the arrangements for this specific trip were made between Marta Lindblom and Diana Liebgold individually, without participation by the employer; that the fees charged by Marta Lindblom for using her car and gasoline in the car pool were set by the claimant, collected by the claimant and not guaranteed or paid by the employer; and that route of travel by the car pool was selected by the claimant and not the employer.

The judge of industrial claims found that compensation was precluded by the going and coming rule. The Supreme Court held that the Industrial Relations Commission’s affirmance of the denial of the claim was in accordance with the evidence.

Since the judge of industrial claims correctly determined that claimant did not sustain an injury from an accident arising out of and in the course of his employment, consideration of claimant’s other contentions is unnecessary. Accordingly, the order appealed is affirmed.

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


author: WENTWORTH, Judge.. BOOTH, Judge,

text:
    COMPUTER SCIENCES, INC. and Fireman’s Fund Insurance Companies, Appellants, v. Donald HENDRICKS, Appellee.
    No. QQ-93.
    District Court of Appeal of Florida, First District.
    April 11, 1980.
    Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellants.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   WENTWORTH, Judge..

This is an appeal from an order of the judge of industrial claims awarding appel-lee temporary total and temporary partial disability benefits, costs, and further benefits on an unclassified basis up to 60 days or until appellee decides whether to undergo a spinal fusion.

Appellants raise the following points on appeal:

1. Whether the judge of industrial claims erred in finding that the claimant was temporarily and totally disabled- for any period of time?
2. Whether the judge of industrial claims erred in awarding the claimant temporary partial disability benefits for any period between September 15, 1978 and January 12, 1979?
3. Whether the judge of industrial claims erred in allowing the claimant 60 days from the entry of the order to decide whether to undergo any surgical procedure?
4. Whether the judge of industrial claims erred in ordering the employer/carrier to pay for remedial treatment that was never claimed before the judge of industrial claims?
5. Whether the judge of industrial claims erred in awarding the claimant temporary total and/or temporary partial disability benefits for specific periods of time between September 15, 1978 and January 12, 1979, and that those dates or types of disability were never claimed before the judge of industrial claims?
6. Whether the judge of industrial claims erred in ordering the employer/carrier to pay compensation to the claimant from January 12,1979, upon an unclassified basis?
7. Whether the judge of industrial claims erred in ordering the employer/carrier to pay costs without evidence of the costs being submitted?

Upon consideration of the briefs and record, we affirm the order as to points 3,4, and 6, and reverse as to points 1, 2, 5 and 7.

There is, in our opinion, insufficient evidence to support the award of temporary total and temporary partial disability benefits. Appellee returned to work following the industrial accident and continued to perform his duties satisfactorily until he was terminated based on excessive absenteeism over an eleven month period, including time prior to the accident. There is no indication that appellee’s absenteeism was a result of his accident.

Appellee testified he was capable of performing his duties as a computer operator and was actively seeking work through the unemployment office during the period of time for which the order awarded temporary disability benefits. The primary treating physilian corroborated appellee’s testimony that he was able to work. Appellee was discharged from work for reasons other than his injury, and was not working because work was unavailable. The award of temporary total and temporary partial disability benefits is therefore reversed. Curtis Robinson v. Olmos, 8 F.C.R. 131 (1973), cert. denied, 286 So.2d 12 (Fla.1973); North American Rockwell v. Filliben, I.R.C. 2-2831 (1975); Norton v. Supreme Aluminum Products, Inc., 8 F.C.R. 6 (1973), cert. denied, 279 So,2d 873 (Fla.1973).

As to point 7, we find no evidence in the record to support the award of costs at the time the order was entered. The award is reversed and the cause remanded for the entry of an order determining costs on the basis of the record or such additional evidence as may be required.

The order is affirmed in part and reversed in part and the cause remanded for further proceedings consistent herewith.

SHAW, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


text:
    STATE of Florida, Appellant, v. Lawrence A. MONGUE, Appellee.
    No. 77-1229.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    Jim Smith, Atty. Gen., Tallahassee, Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.

      Robert E. Jagger, Public Defender, Thomas 0. Michaels, Asst. Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See State v. Wright, 379 So.2d 96 (Fla.1979).

GRIMES, C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Douglas L. HAUSLER, Appellant, v. Mary H. HAUSLER, Appellee.
    No. 79-683.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    Donald B. Hadsock, Bradenton, for appellant.
    William M. Holland, Jr., Tampa, for ap-pellee.
   PER CURIAM.

We affirm, thereby rejecting the appellant husband’s contention that the court erred either in granting rehabilitative alimony to the wife, or in awarding her the marital home upon its finding of her entitlement to both a special equity in the home and lump sum alimony. The awards made by the trial court are within the trial judge’s discretion to provide necessary support and to properly apportion assets of the parties. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In view of the court having awarded custody and control of the minor daughter (born February 28,1964) to the husband, however, we direct it to amend the final judgment to grant the husband exclusive possession of the marital home until thirty days after the daughter reaches eighteen years of age. The trial court shall also grant the husband exclusive possession of the household items it finds necessary to use of the marital home until that date. Finally, the court shall provide that the husband is responsible for mortgage payments, taxes, insurance and upkeep of the marital home during his possession.

GRIMES, C. J., SCHEB, J., and RAW-LINS, ROBERT W., Jr., Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    LEON D. McCORMICK & SONS, INC., Appellant, v. AUTO-OWNERS INSURANCE COMPANY and Employers Group Insurance, Inc., Appellees.
    No. 79-1241.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    Stephen M. Maher of Carroll, McPeak, Bolesky & Schryver, Naples, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Auto-Owners Ins. Co.
   HOBSON, Acting Chief Judge.

McCormick & Sons, Inc., appeals from a judgment in favor of Auto-Owners Insurance Company. Appellant contends that the trial court erred in interpreting the coverage provisions of an automobile insurance policy issued to the appellant by Auto-Owners. We agree and reverse.

On May 16,1977, a 1973 GMC dump truck owned by McCormick & Sons was transporting a load of wet limestone to a road building project. When the driver attempted to dump the load from the dump truck, the wet limestone came out of the truck unevenly. The load emptied from the righthand side of the dump bed first, leaving a disproportionate amount of wet limestone on the left side of the dump bed. This uneven distribution of the remainder of the load resulted in a loss of equilibrium, and the dump bed began to twist. The right rear hinge pin on the back edge of the dump body broke, and the dump body tipped over and came to rest on the ground. The dump truck itself remained upright.

The total cost of repairs to the truck was $5,241.60. The truck was insured by an automobile insurance policy issued by Auto-Owners, but Auto-Owners declined to pay for the damage, contending that the coverage provided by the policy did not extend to the damage suffered. McCormick & Sons filed suit against Auto-Owners; however, the trial court, sitting without a jury, agreed with Auto-Owners that the policy did not cover the damage to the truck. We find that the trial court erred in its interpretation of the policy.

The pleadings of the parties appear to confuse an otherwise clear issue. The policy issued by Auto-Owners provided property damage coverage under the collision coverage section for damage to the insured “automobile and its equipment caused by accidental collision with another object or by accidental upset.” [emphasis added] The policy expressly includes “trucks” within the definition of “automobiles,” and the dump body on the dump truck comes within the policy definition of “equipment.” Since the truck and the dump body were within the coverage provision, the only question is whether the upset of the dump body in this instance falls within the coverage of “accidental upset” within the collision damage section of the policy. We find that it does.

Where the language in an insurance policy is unambiguous, it must be given its fair and natural meaning. Brown v. Lee County Mosquito Control Dist., 352 So.2d 116 (Fla. 2d DCA 1977). The term “accidental upset” is not ambiguous; accordingly, it should be given its normal and ordinary meaning.

In Roberson v. United Services Automobile Association, 330 So.2d 745 (Fla. 1st DCA 1975), the First District held:

Customarily, an accident is defined as an unexpected or unusual event; it,is something which happens by chance and without design; it is an event from an unknown cause.

The overturning of the dump body on the appellant’s dump truck can only be considered to be a fortuitous and unexpected event; therefore, the overturning of the dump body came within the accidental upset coverage provision of the policy.

An argument can be made that the insurance company, by including the accidental upset coverage under the collision section, merely intended to extend collision insurance to the situation where a moving car overturns but does not strike another vehicle or object. If so, the insurance company could have, and should have, made the accidental upset coverage contingent upon the upset happening while the insured vehicle was in motion. Since the insurance company chose not to limit the accidental upset coverage in such a manner, we decline to infer such a limitation.

The trial court’s verdict in favor of Auto-Owners is reversed. This case is remanded with instructions that judgment be entered in favor of McCormick & Sons on the liability issue, and that the trial court determine the appropriate amount of damages.

REVERSED and REMANDED.

BOARDMAN and OTT, JJ., concur.


author: CAMPBELL, Judge.

text:
    Sarah A. ELLIS, Appellant, v. Charles McCASKILL, Lynne McCaskill and Allstate Insurance Company, Appellees.
    No. 79-1242.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.

      Ira M. Seidler, St. Petersburg, for appellant.
    Steven C. Ruth of Piper, Estava, Karvo-nen & Lewis, St. Petersburg, for appellees.
   CAMPBELL, Judge.

Sarah Ellis, plaintiff below, appeals from a final summary judgment for the defendants. The defendants were the son and daughter-in-law of the plaintiff, and the insurance carrier which insured them under a homeowner’s policy. We reverse.

Plaintiff’s action was for injuries she sustained when she fell in the home of the defendants on May 4,1977. She alleged the fall occurred because she was negligently distracted or defendants’ home was negligently maintained, causing her not to observe a six to eight inch step-down from the main floor level of the home to the garage floor.

The defendants had lived in the home less than a week at the time of the accident, and plaintiff had never been in the home before the day of the accident. Defendants had invited her there on that evening to see their new home and to have dinner with them. She arrived sometime between 6:00 P.M. and 7:00 P.M. Nearly immediately upon arrival, the defendant daughter-in-law offered to show her around their new home, suggesting they start in the garage area and work their way through the rest of the house. They then proceeded from the kitchen, out a short hall and through a door into the garage area. Once through the door, the regular floor level of the house continues into the garage for about five to six feet, at which point there is a step-down of about six to eight inches to the remainder of the garage floor. After passing through the door and when facing across the garage from the door, there is, beginning four to five feet to the right of the doorway, an enclosed storeroom that extends from the wall of the main part of the house for the entire five to six feet width of the floor to the point of the step-down. The area to the left of the doorway was empty at the time of the accident but was where the washer and dryer were later to be put, as was explained by the defendant daughter-in-law as she and the plaintiff entered the garage area. The defendant daughter-in-law was also explaining to plaintiff other uses they planned to make of the garage, including the use of the storage area to the right of the door. It was at that point that the plaintiff stepped off of the step-down as she proceeded further into the garage, thereby causing her fall and resulting injuries. She had not been told about the step-down. It apparently had a red line painted along its edge about an inch or two wide which the plaintiff did not notice, testifying that she was observing the other things her daughter-in-law was pointing out to her. Though the daughter-in-law testified that the red line on the step-down was there when they bought the house, she could not recall whether she had ever noticed it prior to the accident. The entire floor level of the garage area, both the lower portion and the regular or main floor level, is painted the same grey color.

Whether or not the step-down in the garage of the defendants’ home was a condition that required plaintiff to be forewarned of it seems to be, under the circumstances of this case, a factual question not susceptible to determination by summary judgment. Likewise, even if there was no duty to warn, whether or not the plaintiff was sufficiently distracted from the danger to come within the “distraction rule” seems to pose a sufficient factual issue to prevent resolution by summary judgment, particularly in view of this state’s comparative negligence rule. It is not simply a case of deciding whether a condition is “hidden” and, thus, actionable, or “obvious” or “previously known” and, thus, not actionable unless distracted. As this court stated in Milby v. Pace Pontiac, Inc., 176 So.2d 554 (Fla. 2d DCA 1965):

The “latency” or “patency” of the condition and the defendant’s duty to warn is determined by asking the question: Would a reasonable and prudent person, exercising due care, have observed the object? This court has recently stated that an object is hidden or latent if it is “one which could not be discovered by the exercise of reasonable care,” Grall v. Risden, Fla.App.1964, 167 So.2d 610, cert. denied Fla.1965, 174 So.2d 736, filed May 5, 1965, or from “a casual observation of the premises.” Kagan v. Eisenstadt, Fla. App.1957, 98 So.2d 370. Unless this question can be answered as a matter of law, as was the case in Grail v. Risden, supra, we think it should be decided by the jury.

Our attention has been called to a line of cases which tend to limit that holding in Milby v. Pace Pontiac, Inc., supra. Most of those cases were decided when this state applied the r.ule that exempted liability when the complaining party was guilty of contributory negligence. See Pensacola Restaurant Supply Co. v. Davison, 266 So.2d 682 (Fla. 1st DCA 1972); Allied Business Association v. Saling, 227 So.2d 712 (Fla. 4th DCA 1969). We do not feel that in every case the “distraction rule” should be limited to some sudden external disturbance or urgency. We think the better rule is the “reasonable and prudent person” rule set forth in Milby v. Pace Pontiac, Inc., supra, and applied with regard to the admonition in Tomlinson v. Wilson & Toomer Fertilizer Company, 165 So.2d 801 (Fla. 2d DCA 1964), that it is not feasible to adopt a hard and fast rule as to what is a legally'sufficient distraction to justify a person’s attention being diverted from a known danger. Where the distraction arises from external causes, it would seem that whether or not it was sufficient would nearly always be a jury question. On the other hand, however, we cannot hold that every distraction that was not sudden or urgent or did not arise from external causes is not sufficient to justify an action for negligence. It is the totality of the circumstances of each particular case that must be considered, including all distracting elements of whatever nature. This rule would apply to dangers previously known and forgotten or not previously known but obvious. See also LeMay v. U. S. H. Properties, Inc., 338 So.2d 1143 (Fla. 2d DCA 1976).

As was said by this court in Nance v. Ball, 134 So.2d 35 (Fla. 2d DCA 1961):

Some cases are clearly disposable by summary judgment. There are also marginal cases posing colorable issues which the trial court may consider so weakly supported as to indicate the futility of a full hearing on the merits. In such a case, where adherence to the rule of caution results in a denial of summary judgment, the court may feel that there has been an unjustified extension of fruitless litigation. Our own experience attests an occasional impulse to amputate at once rather than face the prospect of surgery by painful stages, but herein lies the occasional margin of error.
The trial court may be convinced that a doubtful or marginal case would be practically unprovable, and most frequently that could be the net result. We do not apprehend, however, that the denial of summary judgment in such cases would likely result in ultimate miscarriage of justice.

We, therefore, reverse and remand for further proceedings.

SCHEB, Acting C. J., and DANAHY, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Joseph A. BENNETT, Appellee.
    No. 79-1254.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Clear-water, and Bruce G. Howie, Asst. Public Defender, Clearwater, for appellee.
   BOARDMAN, Acting Chief Judge.

The state appeals the trial court’s order discharging appellee Bennett. The order was predicated on the trial court’s conclusion that the speedy trial time had run. We disagree and reverse.

On December 7,1978, an information was filed in Pasco County charging appellant with two counts of aggravated battery. The charges arose out of an incident occurring on October 20, 1978. Appellee had shot his brother-in-law in Tarpon Springs (Pinellas County) and was involved in a high speed automobile chase on U.S. 19, which leads into Pasco County. On notification from Pinellas County law enforcement officers, a road block had been set up by Pasco County police about five miles into Pasco County. Appellee smashed into the road block and collided with two Pasco County police cars, injuring two Pasco County police officers. He was stopped by Deputy Johnson of the Pasco County Sheriff’s Department, who detained him and turned him over to the Pinellas County authorities immediately following their arrival at the scene. Appellee was then immediately transported to Pinellas County, where he was indicted for murder and charged with three traffic violations, of which he was found guilty in January of 1979. He was sentenced on April 25, 1979.

A capias had been issued in connection with the information filed in Pasco County on December 7, 1978, which capias was received by the Pasco County Sheriff’s Department on December 8. The capias was not executed until May 2, 1979.

On June 18, 1979, appellee filed a motion for discharge, pursuant to Rule 3.191(a)(1), Florida Rules of Criminal Procedure. At the hearing on the motion, defense counsel contended that Johnson had, in effect, arrested appellee on the aggravated battery charges at the time he detained appellee on October 20, 1978.

It was defense counsel’s position that Johnson had a duty to arrest appellee on October 20 on the aggravated battery charges and that speedy trial time ran from the time appellee could or should have been taken into custody.

At the hearing on appellee’s motion, the trial judge questioned the long wait between the time the information was filed (December) and the time that the capias was served on appellee (May), noting that the fact that appellee was in the Pinellas County jail would not account for the sheriff’s office being unable to locate appellee, since a note attached to the capias indicated appellee’s address as “Pinellas County Jail, Clearwater, Florida.” The trial judge therefore granted the motion for discharge. This appeal followed timely.

Under Rule 3.191(a)(1), speedy trial time begins when the defendant is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. Swanson v. Love, 290 So.2d 112 (Fla. 2d DCA 1974); State v. Jones, 285 So.2d 651 (Fla. 3d DCA 1973). But for the notification from Pinellas County, the Pasco County deputy would not have detained appellee. Where the Pasco County deputy was detaining appellee for the Pinellas County authorities, appellee was not in custody for purposes of speedy trial as to a subsequently filed Pasco County information. Hargrove v. State, 281 So.2d 390 (Fla. 2d DCA 1973), overruled on other grounds, State v. Bassham, 352 So.2d 55 (Fla.1977). See also State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978), and State ex rel. Dean v. Booth, 349 So.2d 806 (Fla.2d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978), in which the detaining officers were held not to have taken the defendant into custody within the meaning of the speedy trial rule on the date of the offense.

The trial court did not find that appellee was taken into custody on the Pas-co County charges on October 20, but rather that appellee should have been arrested on these charges shortly after the capias was issued on December 7. There is no authority for this conclusion. In the first place, it does not appear that Deputy Johnson was aware of the physical injuries to the two victims at the time he detained appellee. But even if he had had probable cause at that time to arrest appellee on the instant aggravated battery charges, he was not required to make the arrest then. The police may delay an arrest beyond the completion of their investigation, although the accused might be entitléd to dismissal if he has been prejudiced by the delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Robbins, supra. Appellee has not demonstrated that the delay in serving the capias has prejudiced him in any way. We note that the capias was served only seven days after his sentencing on the Pinellas County charges.

We hold that appellee was not taken into custody on the instant charges within the meaning of Rule 3.191(a)(1) until May 2, 1979, the date the capias was served. Consequently, the speedy trial period had not run on the date of his motion, and he was not entitled to discharge.

Accordingly, the trial court’s order granting appellee’s motion for discharge is REVERSED and the cause REMANDED.

OTT and DANAHY, JJ., concur.


text:
    Denise E. FOURNIER, Appellant, v. William R. FOURNIER, Appellee.
    No. 79-1287.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    N. David Korones of Korones, Downey & Glenn, Clearwater, for appellant.
    Wayne O. Smith of Wallace & Smith, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

The wife in this dissolution proceeding challenges the amount of alimony and child support awarded and the trial court’s refusal to award her attorney’s fees. We agree that the amount of child support awarded is inadequate and reverse in part.

The husband earns approximately $16,000 per year, and the wife earns about half that. The husband has custody of the parties’ seventeen-year-old daughter; the wife has custody of their five-year-old twins. The trial court awarded the wife $100 per month alimony and child support of $25 per month per child.

While the husband is by no means wealthy, he definitely has the ability to contribute more child support than the sum awarded, and the wife has amply demonstrated her need for a greater amount.

Although we recognize that the trial court has broad discretion in determining the amount of child support, Kahn v. Kahn, 78 So.2d 367 (Fla.1955), an appellate court is nevertheless justified in ordering an increase in support when it finds a clear abuse of discretion. McArthur v. McArthur, 95 So.2d 521 (Fla.1957); Johnson v. Johnson, 367 So.2d 695 (Fla. 2d DCA 1979). In Alford v. Alford, 364 So.2d 1255 (Fla. 2d DCA 1978), we held an award of $62.50 per month for one child to be clearly inadequate. Further, we note that the parties’ seventeen-year-old contributes $30 per week to husband for her support, yet husband contends that this amount is “almost negligible.” Surely, if this is true, the even smaller award of $25 per month per child here is grossly insufficient. We submit that, under the circumstances demonstrated by the record in this case, $75 per month per child is the minimum realistic amount the trial court should have awarded.

We find no merit to the remaining points raised by appellant wife.

Accordingly, the portion of the trial court’s order awarding child support of $25 per month per child is vacated, and the cause is remanded with instructions to award child support in the amount of $75 per month per child. In all other respects the judgment of dissolution is affirmed.

SCHEB and CAMPBELL, JJ., concur.


author: SHAW, Judge.

text:
    In re Patricia LAY, for Disclosure of Adoptive Records, Appellant.
    No. PP-238.
    District Court of Appeal of Florida, First District.
    April 14, 1980.
    Tommy E. McPherson, Pensacola, for Patricia Lay.
   SHAW, Judge.

The narrow issue before us is whether § 63.162(4), Florida Statutes (1979), precludes disclosure of adoption records to persons other than the adoptive parents or the adopted child. We conclude that it does not.

Patricia Lay was one of eight children who were placed in adoptive homes in 1953 when they were 15, 13, 12, 10, 8, 6, 5 and 4 years of age. Three of the siblings went to one home. The other children were each adopted by different families. Five of the brothers and sisters have been reunited through their own search, and they seek disclosure of records which would lead to the present whereabouts of the remaining three brothers. If disclosure is allowed and if the brothers can be located, they have agreed to the intervention of a third party whose contact with the three brothers would serve to determine whether those brothers wish to be reunited with the other five.

The judge denied the petition based upon his determination that the petitioner desired the release of information from the adoption records of her brothers and that such disclosure was not authorized by law. In our view the relevant statute does not lend itself to so strict an interpretation. Section 63.162(4), Florida Statutes, provides:

Except as authorized in writing by the adoptive parent or the adopted child, if 18 or more years of age, or upon order of the court for good cause shown in exceptional cases, no person shall disclose from the records the name or identity of either an adoptive parent or adopted child, (e.s.)

We conclude that the legislature, by using the disjunctive phrase emphasized supra, recognized that a court may for good cause shown, in exceptional cases, grant disclosure. Implicit in the statute is the exercise of judicial discretion. The court abuses this discretion when: (1) it refuses to release the requested information although good cause is shown, or (2) it releases the requested information although good cause is not shown. In Be Adoption of Rand, 347 So.2d 450 (3rd DCA 1977). The order on appeal is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


text:
    STATE of Florida, Appellant. v. Tommy Dale GOLDEN, Appellee.
    No. PP-296.
    District Court of Appeal of Florida, First District.
    April 14, 1980.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    E. Brian Lang of Mann & Lang, Pensacola, for appellee.
   PER CURIAM.

The record reveals that Golden was adjudicated guilty and sentenced on July 28, 1978. He appealed, and this Court issued a mandate on June 19, 1979. On June 29, 1979, Golden moved for reduction of sentence pursuant to Rule 3.800(b), Fla.R. Crim.P.

Golden asserts, and the State does not deny, that on July 16, 1979 a hearing was held on the motion and the State agreed that an order modifying the sentence could be entered on September 7, 1979, a date scheduled for the trial of other charges pending against Golden. On September 7, however, the State indicated that it would no longer concur in the modification even though it acknowledged the existence of the prior understanding of the parties before the judge.

On September 9, 1979 the judge entered his order modifying the sentence of July 28 and the State appealed, relying on State v. Smith, 360 So.2d 21 (Fla. 4th DCA 1978); De La Paz v. State, 358 So.2d 1093 (Fla. 3rd DCA 1978); and State v. Mancil, 354 So.2d 1258 (Fla. 2d DCA 1978). We affirm the order before us. The hearing of July 16, 1979 was within the 60-day limit. At that time the judge effectively enlarged the period of time in which he could enter the order modifying sentence. Rule 3.050, Fla. R. Crim.P.

AFFIRMED.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    GOODYEAR SERVICE STORE and the Travelers Insurance Company, Appellants, v. David Stanley ROCKEY, Appellee.
    No. PP-322.
    District Court of Appeal of Florida, First District.
    April 14, 1980.
    R. Dennis Comfort of Jones & Langdon, P. A., Gainesville, for appellants.
    Barry D. Graves of Ritch & Graves, Gainesville, for appellee.
   SHIVERS, Judge.

This workmen’s compensation appeal presents two issues on appeal and one issue on cross-appeal. We strike the portion of the order requiring employer/carrier to pay future medical services, but otherwise affirm.

The employer/claimant raises the following issues:

I. WHETHER THE DEPUTY COMMISSIONER ERRED IN ORDERING THE EMPLOYER/CARRIER TO PAY TO THE CLAIMANT 50% PERMANENT PARTIAL DISABILITY BENEFITS.
II. WHETHER THE DEPUTY COMMISSIONER ERRED IN ORDERING THE EMPLOYER/CARRIER TO FURNISH TO THE CLAIMANT SUCH MEDICAL CARE AND ATTENTION AS THE NATURE OF HIS RECOVERY MIGHT REQUIRE WHEN THIS WAS NOT AN ISSUE TO BE DETERMINED AT THE FINAL HEARING.

Claimant presents the following issue on cross-appeal:

THE DEPUTY COMMISSIONER ERRED IN FAILING TO FIND THAT CLAIMANT WAS PERMANENTLY AND TOTALLY DISABLED AS A RESULT OF THE ACCIDENT OCCURRING ON 8 MAY 1976.

After carefully reviewing the record on appeal, including the surveillance film introduced by employer/carrier, we find competent, substantial evidence to support the finding that claimant is entitled to 50% permanent partial disability benefits. The record is clear that claimant is not entitled to permanent total disability benefits.

The portion of the Order appellant questions by Issue II is as follows:

WHEREFORE, IT IS THE ORDER of the undersigned that the employer, through its carrier:
3. Furnish to the claimant such medical care and attention as the nature of his injury and the process of his recovery might require. .

Appellee concedes that the issue of future medical services was not before the Deputy Commissioner but argues that the quoted portion of the Order merely requires appellant to do what the law requires. We disagree with appellee’s contention that the Order merely requires appellant to comply with Section 440.13(1), F.S. The statutory obligation to furnish future medical services is subject to statutory time limitations not contained in the Order. The above-quoted portion of the Order is hereby stricken.

The Order, as modified, is

AFFIRMED.

MILLS, C. J., and ERVIN, J., concur.


author: WENTWORTH, Judge.

text:
    MERCY HOSPITAL and Underwriters Adjusting Co., Appellants, v. Bonnie DODSON, Appellee.
    No. QQ-204.
    District Court of Appeal of Florida, First District.
    April 14, 1980.

      Summers Warden, Miami, for appellants.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellee.
   WENTWORTH, Judge.

The employer/carrier appeals a worker’s compensation order entered November 2, 1978, which we affirm except as to the award of interest at 8% on past due compensation awarded for the period after August 23, 1977. Although W.C.R.P. Rule 21, on which appellant relies for a 6% rate, was repealed prior to the date on which the benefits in question accrued or became due, we conclude the facts and argument by the parties will permit no higher rate. § 55.-03(1), Florida Statutes; § 687.01, Florida Statutes; Miami-Dade Water & Sewer Authority v. Caravasios, 377 So.2d 56 (Fla.lst DCA 1979); Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955).

As to interest, if any, on benefits accruing after July 1,1978, which is the effective date of § 440.20(9), Florida Statutes, appellee here (as in Miami-Dade Water & Sewer Authority v. Caravasios, supra) does not cite and we do not consider that provision. Our disposition of the issue in this case accordingly does not require agreement or disagreement with the ruling in F & A Concrete v. Perry, 379 So.2d 1015 (Fla.lst DCA 1980), insofar as it implies a substantive character for changes in interest rate provisions on delinquent compensation, so as to apply to such provisions an amendato-ry act’s limitation of applicability to prior accidents.

The order appealed is hereby modified to provide an interest rate of 6% instead of 8% and is otherwise affirmed.

ROBERT P. SMITH, Jr., and LARRY G. SMITH, JJ., concur.


author: McCORD, Judge.

text:
    PANTRY PRIDE, Appellant, v. Juan GONZALEZ, Appellee.
    No. QQ-361.
    District Court of Appeal of Florida, First District.
    April 14, 1980.
    Thomas R. Trompeter of Underwood, Gil-lis, Karcher, Reinert & Valle, Miami, for appellant.
    Joseph J. Finkelstein of Pelzner, Schwe-dock & Finkelstein, Miami, for appellee.
   McCORD, Judge.

Employer/carrier appeals from a workers’ compensation order awarding to appel-lee a 35% permanent partial disability based on a 15% physical impairment and a 20% functional impairment. We reverse and remand.

On January 21,1976, appellee suffered an industrial accident, injuring his lower back. His treating physician testified, and the Judge of Industrial Claims found, that ap-pellee suffered a 15% permanent partial disability of the body as a whole.

At the time of the accident, appellee’s job required that he be able to lift. In his postaccident reports, the treating physician, Dr. Aron, stated that appellee could perform most moderate work, but he placed some limitation on appellee’s ability to bend and lift. The Judge of Industrial Claims specifically accepted the above testimony of Dr. Aron and then concluded that the restrictions on bending and lifting placed on appellant would limit appellant in his ability to find gainful employment of a type similar to and commensurate with his prein-jury earnings. Thereupon, the Judge of Industrial Claims concluded:

I therefore specifically find that the claimant has sustained a 35% permanent partial disability of the body as a whole predicated on a 15% physical impairment, and in accordance with the opinion of Dr. Aron, the operating surgeon, and compounded by a 20% functional impairment which the claimant’s post injury job attempts have demonstrated will lead to work which is light in nature and of a salary type in the range of $75 to $85 a week and of a type which will generally pay from $1.50 to $2 per hour for a 40 hour week.

According to appellee’s own testimony, he restricted his job search mainly to jobs which required lifting. The evidence shows that appellee engaged in a diligent work search which was sufficient to show that his wage-earning capacity is impaired in regard to jobs requiring lifting. However, the record does not show that appellee’s job capabilities and training limit him to accepting only those jobs which require lifting. In Shaw v. Burk Builders, Inc., 240 So.2d 297 (Fla.1970), the court said:

In determining claimant’s ability to compete in the open labor market, such ability is not to be measured in terms of whether he can perform only the same work being performed at the time of the injury, but rather by his ability to earn wages in the same or any other type of work which he is capable and qualified to perform.

In Central Builders Supply of Tampa v. Farramola, IRC Order 2-3655 (1979), the Commission said:

The claimant had the burden of showing an active search for work which must also be sincere, that is compatible with claimant’s physical or other types of limitations ... In the light of the pertinent criteria for determining wage-earning capacity loss and after reviewing the limited work effort displayed in this case, it is clear that claimant has failed to meet the burden of testing his employability in the open labor market after attaining maximum medical improvement. (Citations omitted.)

In City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980), this Court found that a judge of industrial claims’ finding with regard to a claimant’s wage-earning capacity is not based on competent substantial evidence unless there is some evidence in the record to support the figures at which the judge arrived. See also Wesley’s Inc. v. Caramello, 156 So.2d 853 (Fla.1963). We find no evidence in the record in this case to support the Judge of Industrial Claims’ conclusion that appellee’s earning power has been reduced to $75 to $85 a week. The above-cited authorities prohibit a judge of industrial claims from merely speculating on wage-earning capacity loss.

On the basis of the foregoing authorities, we conclude that appellee has not carried his burden of testing his employability in the open labor market since he has not shown that he has sought jobs which are within the realm of his present abilities. The record does not contain competent substantial evidence to support the Judge of Industrial Claims’ conclusion that appellee suffered a 20% additional impairment due to a wage-earning capacity loss. We, therefore, reverse the finding of that additional impairment and order that appellee’s recovery from appellant be reduced to a payment of benefits based on the 15% physical impairment which is supported by the record.

The parties stipulated to an award of attorney’s fees in the amount of $1,575 based on the correctness of the Judge of Industrial Claims’ award. Since the award has been successfully challenged, we remand also for reconsideration of attorney’s fees in light of the reduction in the benefits awarded.

Reversed and remanded.

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