text:
    SPRING AIR MATTRESS COMPANY a/k/a Tiffany Furniture Ind. and Liberty Mutual Ins. Co., Appellants, v. Celine J. COX, Appellee.
    No. AE-87.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      Donna L. Bergh of Walker, Buekmaster, Miller & Ketcham, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   PER CURIAM.

In this workers’ compensation appeal, involving a claim seeking wage-loss benefits, we are called upon to determine whether the deputy erred in finding that the claimant sustained a permanent physical impairment without express reference to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1977) (“Guided’), and, if not, whether that finding is adequately supported by the evidence of claimant’s subjective complaints of pain to her physician. We affirm, and also set out the proper method for awarding appellate attorney’s fees when the deputy has reserved jurisdiction to determine the propriety of a fee award but has not reached a determination as required by § 440.34(2), Florida Statutes (1979).

The industrial injury in this case stems from an incident in which claimant suffered immediate and severe pain in her right wrist while cutting a foam mattress with a heavy pair of scissors. Her condition, diagnosed as carpal tunnel syndrome, eventually required her to undergo surgery. Dr. Gil-mer rated claimant as 5% permanently, partially disabled, stating that a permanent impairment rating based on the claimant’s subjective pain complaints was entirely consistent with the requirements of Chapter 2 of the Guides.

The fact that Dr. Gilmer’s testimony was based on the Guides and stemmed from his long-term treatment of the claimant as the primary treating physician makes it apparent why the deputy relied on testimony from him instead of a conflicting expert. That the deputy failed to use the magic words “based on the A.M.A. Guides” in finding a permanent physical impairment of the claimant therefore provides no grounds for relief because it is readily apparent from the record that the claimant’s permanent physical impairment rating complies with the Guides. Cf., Rouse v. Wyldwood Tropical Nursery, 392 So.2d 370 (Fla. 1st DCA 1981).

As to appellant’s second contention concerning the diagnosis of a permanent impairment by Dr. Gilmer based on the claimant’s subjective complaints of pain, we find that this diagnosis falls within the parameters of Chapter 2 of the Guides. The evaluation method in this chapter requires a physician to determine the extent of loss of function due to: (a) sensory deficit, pain or discomfort and (b) loss of muscle strength. Guides, supra, at 49 (e. s.). This chapter of the Guides cites three carefully defined factors for evaluation of pain associated with nerve disorders. Id. at 49-50. It notes that “subjective complaints of pain which cannot be substantiated along these lines are not considered within the scope of this guide.” Id., at 50. Implicit in this statement is the fact that subjective pain complaints which can be substantiated along the foregoing lines are considered within the scope of this portion of the Guides. Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980); see also Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981). Gilmer’s testimony and that of claimant reveals evidence satisfying all three pain evaluation requirements, and a loss of muscle strength as required by Chapter 2 of the Guides.

In reaching this conclusion we have not overlooked our previous opinion in Decor Painting and Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981). The deputy commissioner there accepted a doctor’s permanent impairment rating based in part on the Guides and in part on the claimant’s subjective complaints of pain. We reversed this determination, because the doctor’s consideration of the claimant’s pain complaints went beyond the ankylosis tables in the Guides that were used for rating permanent impairment to the ankle joint. Id. at 901. We distinguish Rohn from the ease before us, because the section of the Guides relevant to evaluating permanent impairment in this case requires the consideration of complaints of pain, insofar as the pain interferes with a claimant’s daily life, follows the dermatome distribution, and manifests itself in such a manner as to indicate that it is caused by some form of impairment to the peripheral spinal nerves. Thus, consideration of the claimant’s subjective complaints of pain by Dr. Gilmer in reaching his diagnosis of permanent impairment was not only consistent with Chapter 2 of the Guides, it was required.

In rendering his order, the deputy commissioner noted that the claimant requested payment of attorney’s fees based on a bad faith refusal by the employer/carrier to properly pay benefits to which she was entitled. See § 440.34(2)(b), Florida Statutes (1979). The deputy reserved jurisdiction to conduct a separate hearing on the factual issue of Bad faith. Seeking payment of her attorney’s fees on appeal, the claimant has once again alleged bad faith. If the employer/earrier is found by the deputy to be liable for fees in the proceedings below, the claimant is also entitled to fees on appeal. § 59.46(1), Florida Statutes (1977). The proper method to handle this problem is for this court to provisionally award fees contingent upon the deputy commissioner’s determination of bad faith on the part of the employer/earrier. If the deputy commissioner makes a finding of bad faith, the provisional grant of appellate attorney’s fees automatically becomes effective.

Therefore, we affirm the deputy commissioner’s finding of permanent physical impairment and dispose of the appellate attorney’s fee petition by unpublished order.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    LEE ROBERTS MOTORS, INC., and Auto-Owners Insurance Co., Appellants, v. James E. DILLARD, Appellee.
    No. AF-130.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      John P. Brooks, of Jones & Langdon, Gainesville, for appellant.
    R. Dennis Comfort, of Seig, Comfort, Hawk, La Croix. & Reid, Gainesville, for appellee.
   WENTWORTH, Judge.

In addition to evidentiary issues in which we find no merit, the appellant employer/carrier urges two other errors in an order reinstating temporary disability compensation and finding claimant “is in need of further medical care . . . including . . . psychiatric care.” We affirm.

The contentions are that the deputy erred (1) in awarding temporary total disability from a date earlier than that stated in the claim, and (2) in ordering employer/carrier “to provide psychiatric care for the claimant” because “there was no claim ... for psychiatric care.” These arguments have no substance in view of the claimant’s express position stated by pretrial stipulation, i.e., that he “has not yet reached MMI.” (e.s.) In the context of all facts within employer/carrier’s knowledge, claimant’s stated position adequately placed in issue the reclassification of two months’ permanent benefits paid before the date claimed for resumption of temporary total disability. The order entered, providing credit, simply accomplished that objective without any apparent prejudice to eniployer/carrier’s defense.

With respect to medical benefits the decretal portion of the order does no more than recite the statutory obligation to furnish claimant such benefits “as the nature of his injury and the process of his recovery may require.” Both the proviso “including but not limited to psychiatric care” and the preceding finding of need appear to be adequately predicated on the evidence submitted and the claim for further medical care implicit in the stated claim that MMI was “not yet reached.”

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


text:
    James John MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. AF-281.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      Virlyn B. Willis, Jr., Lake City, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., and Stephen C. Fredrickson, Legal Intern, Tallahassee, for appellee.
   WENTWORTH, Judge.

This is an appeal from a conviction upon plea of nolo contendere to the offense of cultivating cannabis. The plea was entered after the trial court denied appellant’s dis-positive motion to suppress. We affirm.

Shortly before August 29, 1979, Sheriff Bailey of Columbia County asked his deputies to furnish him with a list of areas in which they suspected that marijuana was being grown. Deputy Graham told the sheriff about several such areas, one of which was located across a highway from appellant’s property. On August 29, the sheriff borrowed a helicopter and pilot from the Duval County Sheriff’s Office. While flying over appellant’s land, the pilot said “here’s a field over here,” and they circled back around. Once over the field, the helicopter was lowered to within 150 feet of the ground. The sheriff, using binoculars, identified the plants in the field as marijuana.

The sheriff then returned to Lake City and executed an affidavit for search warrant. The affidavit described appellant’s property, alleged that it contained marijuana, and stated that the affiant was patrolling the “above-described area and the surrounding vicinity in a helicopter ... in an effort to locate a patch of cannabis that was reported to be in the above-described area.” The affidavit also stated that Deputy Graham had provided the information that cannabis was growing in that area.

In his first point on appeal, appellant argues that the sheriff was conducting an illegal search of his premises when he saw the marijuana. Appellant points out that his premises and home were located in an area protected by a locked gate, and that nothing unlawful could be observed from the public road. Appellant relies on this court’s opinion in Kilpatrick v. State, 403 So.2d 1104 (Fla. 1st DCA 1981) for his contention that the search and seizure were not justified under the “plain view” doctrine. The state responds that the helicopter observation of the marijuana provided a legal basis for obtaining a search warrant under the “open fields” doctrine. DeMontmorency v. State, 401 So.2d 858 (Fla. 1st DCA 1981).

In Kilpatrick, the officer was within the curtilage of the defendants’ home when he observed the marijuana. The court held that he had no right to be there and therefore the observation could not be justified under the plain view doctrine. In DeMont-morency, the growing marijuana was not located within the curtilage of the defendant’s home. This court held accordingly that there was no expectation of privacy in the area even though it was fenced and the officers trespassed across the defendant’s property before they were able to observe the marijuana.

As these two cases indicate, the distinction between the “plain view" doctrine and the “open fields” doctrine lies in the possessor’s expectation of privacy in the area observed. If an officer is in a constitutionally protected area and he has ño right to be there, items which he views there may not be seized under the plain view doctrine. If, however, the area observed is not constitutionally protected, evidence obtained pursuant to the observation may be admissible under the “open fields” doctrine.

Appellant did not, in our opinion, have a reasonable expectation of privacy in his field of growing marijuana. The pilot of the helicopter spotted the field as he flew over it at the usual height at which such aircraft travel. When the helicopter was lowered to within 150 feet of the ground, the sheriff was able to positively identify the plants with the use of binoculars. Finally, the plants were growing 300 to 450 feet away from the appellant’s home. Under these circumstances, appellant had no reasonable expectation that the area would be free from government intrusion in the form of a helicopter observation.

In his second point on appeal, appellant argues that the affidavit in support of the warrant contained a material misstatement which voided the warrant. The affidavit indicated that Deputy Graham had described appellant’s property to the sheriff as one he suspected of growing marijuana. In fact, Graham had described some nearby property, and the observation of appellant’s field was inadvertent. According to appellant, this is a false statement made with reckless disregard for the truth. However, there is no support for this contention in the record. On the contrary, the record amply demonstrates that the misstatement was an innocent mistake. Francis v. State, 412 So.2d 931 (Fla. 1st DCA 1982).

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.

      . Proceedings for review of Kilpatrick and De-Montmorency are currently pending in the Florida Supreme Court.

      . See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

      . See DeMontmorency, at 862, nn. 7 & 8, for a discussion of the relevancy of the distance between the home and the area observed.


author: SHIVERS, Judge.

text:
    Willie George ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. AF-347.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      Melanie Ann Hines, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Rogers appeals his conviction for possession of a weapon by a prison inmate. Section 944.43, Fla.Stat. (1979). Among other points, appellant asserts as error the trial court’s taking judicial notice of Rule 33.-306(1), Fla.Admin.Code. We affirm defendant’s conviction on all points but this one point appears to merit further discussion.

Section 944.43 proscribes possession of weapons by inmates contrary to any rule or regulation of Department of Corrections. DOC implemented the statute by promulgating Rule 33.306(1), Fla.Admin.Code.

The trial court arraigned Rogers on January 26, 1981, by Information (which had been filed on December 31, 1980) charging him with the unlawful possession of a weapon contrary to Section 944.43. The information recited verbatim the text of the relevant rule forbidding possession of weapon by an inmate. On April 20, 1981, the day before jury selection, the prosecution requested in writing that the trial court take judicial notice of the rule. The trial court, after argument of counsel, granted the request over Rogers’ objecton. At trial, on April 23, 1981, the Court allowed the State to publish the rule by reciting it to the jury. The jury then convicted Rogers as charged.

Section 90.202(9), Fla.Stat. (1979) provides that a court may take judicial notice of rules promulgated ■ by governmental agencies of this state which are published in the Florida Administrative Code.

Section 90.203 provides that a court shall take judicial notice of any matter in Section 90.202 when a party requests it and

(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

In Jones v. State, 392 So.2d 18 (Fla. 1st DCA 1980), we considered a similar violation of the same statute and rule. There we approved the trial court’s action in reopening evidence so that the State could introduce the said Department of Corrections rule. In that case we noted that in light of the way the issue was presented that we were not ruling on the applicability of Section 90.202(9), Fla.Stat. (1979).

In Wyatt v. State, 270 So.2d 47 (Fla. 4th DCA 1972), the Court cited the Supreme Court case of Amos v. Mosley, 74 Fla. 555, 77 So. 619 (1917) for the principle that judicial notice takes the place of proof and is a superior means of establishing facts:

Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary ....

The administrative rule, thus, could have been presented by its introduction into evidence or by the trial court taking judicial notice of it.

The question arises here whether Rogers was given timely written notice of the request to take judicial notice and whether the court had been furnished with sufficient information to take judicial notice.

Although Rogers asserts he was given inadequate notice of the prosecution’s intent to rely on Rule 33.306, Fla.Admin.Code, we find that Rogers was not prejudiced. Rogers had been furnished the text of the rule by the information approximately three months prior to trial. We further find that this rule, set forth as it was in the court file and published in Florida Administrative Code, informed the trial court sufficiently for it, upon written request, to take judicial notice.

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


text:
    Leon Elmore POWE, Appellant, v. STATE of Florida, Appellee.
    No. AF-498.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Powe seeks review of his conviction for trafficking in methaqualone asserting as error the trial court’s restriction of appellant’s cross-examination of a State’s witness. We find the trial court unduly restricted defense cross-examination and reverse.

On October 16, 1980, appellant was charged by information with trafficking in methaqualone and with possession of cocaine. The first trial ended in a mistrial. At the second trial, the State presented the testimony of Roy Michel who drove an automobile instrumental in the drug transaction underlying the charges against Powe.

On cross-examination, the defense counsel inquired about any plea bargaining Michel had entered into in return for his testimony. Michel testified that the State dropped a charge of trafficking in metha-qualone, that he entered a plea of guilty to a charge of possession of cocaine, and that he was sentenced to five years probation and required to pay a $500 fine. Defense counsel asked several times whether Michel was informed or aware that a conviction for trafficking in methaqualone carried a minimum mandatory five year sentence. The prosecution objected on each occasion to the relevancy of the question and the trial court sustained the objections.

In Wolfe v. State, 190 So.2d 394 (Fla. 1st DCA 1966) we stated:

It has long been the policy of the law that testimony of an accomplice is regarded with disfavor; is subject to close scrutiny; and, should be received with caution by the jury. The reason for the rule arises from the willingness of some persons charged with or convicted of a crime to wrongfully implicate others if by doing so, they may mitigate the penalty against themselves, (footnote omitted)

Great latitude should be allowed in the cross-examination of an accomplice who testifies for the prosecution. Leavine v. State, 109 Fla. 447, 147 So. 897 (1983). 2 Wharton's Criminal Evidence, (1972), Sec. 425, p. 323.

The courts have repeatedly held that a defendant has the right to fully cross-examine a State’s witness to reveal bias and any improper motive the witness may have had in testifying against the defendant. Simmons v. Wainwright, 271 So.2d 464 (Fla. 1st DCA 1973); McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977). This right has been specifically extended to defense interrogation of a prosecution witness who was recently under the threat of criminal charges. Rolle v. State, 386 So.2d 3 (Fla. 3d DCA 1980). We find that whether Michel knew of the minimum mandatory penalty for a conviction of trafficking in methaqualone may have impacted significantly on the plea-bargaining agreement and on Michel’s willingness to testify against Powe. We recognize that control over the scope of the cross-examination properly lies with the trial court and is not subject to review except for a clear abuse of discretion. Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA 1978). Here, the trial court clearly abused its discretion by unduly limiting the defense interrogation of Michel. Accordingly, we reverse Powe’s conviction and sentence and remand for a new trial.

REVERSED and REMANDED.

ERVIN and WENTWORTH, JJ., concur.


author: THOMPSON, Judge.

text:
    Jimmy BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AG-238.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   THOMPSON, Judge.

Brown appeals from a final judgment of guilt of two counts of armed robbery with a firearm and one count of possession of a firearm by a convicted felon, contending the trial court erred in adjudicating him guilty of two counts of armed robbery when his offense constituted a single criminal transaction. Brown also charges as error the trial court’s failure to conduct a Richardson inquiry upon his objection to an alleged violation of the discovery rules by the State. We affirm.

A lone man, later identified as Brown, entered a store and asked the store supervisor whether the store sold money orders. Upon being advised that the store did not sell money orders, he pulled a gun from his waistband and demanded the money from the cash register which the supervisor was operating. After receiving the cash, he demanded the money from the store’s other cash register for which the supervisor had no key. He then had her call another store employee who was working in the rear of the store and who had the key to the other register. Although told by the supervisor that a robbery was in progress, the other employee thought the supervisor was joking until Brown pulled his jacket back and showed her the butt of his pistol sticking out of his waistband. She was “nervous and scared” when she saw it “because he may have used the gun on me.” She then opened her register and gave the cash in it to Brown. Relying on Hearn v. State, 55 So.2d 559 (Fla.1951); Morgan v. State, 407 So.2d 962 (Fla. 4th DCA 1982); Thomas v. State, 405 So.2d 1015 (Fla. 1st DCA 1981); and Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974), Brown argues that under the facts outlined above there was only a single criminal transaction or episode and he can therefore be sentenced for only one count of robbery.

As defined in Section 812.13(1), Fla.Stat., robbery “means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.” (Emphasis added) The mere fact that the property may be owned by a single person or entity does not prevent separate robbery charges if two different people are robbed of money or property that is within their custody. An additional element of the crime of robbery is that the money or property must be taken by force, violence, assault, or putting in fear. Separate charges of robbery are proper against a person who has taken money or property belonging to or in the custody of two separate individuals if each taking is accompanied by force, violence, assault, or putting in fear. Surely it cannot be contended that separate charges of assault or aggravated assault could not be made against Brown under the facts in this case. If Brown had shot and wounded or killed both the supervisor and the other store employee, separate charges of attempted murder or murder could be brought. Although there was only one owner of the money, Brown took two separate quantities of money that were in the custody of two separate individuals by force, violence, assault, or putting in fear each of the individuals.

The Hearn and Thomas cases, upon which Brown relies, are easily distinguishable. Both involved the crime of larceny or theft which does not involve the requisite element in robbery of force, violence, assault, or putting in fear. Morgan is distinguishable because although the crime of robbery was involved and the property belonged to two people, it was all in the custody of a single person and it was taken by force, violence, assault, or putting in fear of only one person. Two robberies of two different individuals, even though they occur almost simultaneously, are two separate crimes and properly result in two convictions and two sentences. Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982). Contra, Hill v. State, 293 So.2d 79 (Fla. 3d DCA 1974).

Brown further contends that Richardson v. State, 246 So.2d 771 (Fla.1971) requires a reversal because of the trial judge’s failure to conduct an inquiry into an alleged violation of discovery rules by the State. We have examined the record, and under the facts of this case find his contention to be without merit.

The judgments and sentences are AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Ernest Eugene WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. AK-217.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    Ernest Eugene Watkins, pro se, for appellant.
    No Appearance for appellee.
   SHIVERS, Judge.

The trial court summarily denied appellant’s motion for post-conviction relief, filed pursuant to Rule 3.850, Fla.R.Crim.P. On appeal, the issue before this court is whether or not the motion was legally sufficient to require the trial court to attach portions of the file or record to the order, showing conclusively that appellant was not entitled to relief, or to conduct an evidentiary hearing on the motion. Meeks v. State, 382 So.2d 673 (Fla.1980).

Appellant has raised five- grounds for relief. We find three of these grounds to be facially insufficient. First, the allegations regarding ineffective assistance of appellant’s trial counsel are not adequately detailed in the pleading to require further inquiry by the lower court. Knight v. State, 394 So.2d 997 (Fla.1981). Second, appellant has raised, as “Grounds 4 and 5,” matters which were reviewable on direct appeal from the judgment and sentence, and which will not support a collateral attack. See, Hargrave v. State, 396 So.2d 1127 (Fla.1981); Adams v. State, 380 So.2d 423 (Fla.1980); Spenkelink v. State, 350 So.2d 85 (Fla.1977); State v. Matera, 266 So.2d 661 (Fla.1972).

The two remaining grounds raised by appellant challenge the legality of his sentence. These issues are properly raised in a motion for post-conviction relief, and we find that the allegations made by appellant establish prima facie grounds for relief. Initially, appellant contends that he was convicted and sentenced on five separate counts, some of which contained lesser included offenses of the others. Appellant has listed the five offenses, but not the statutory sections under which he was convicted. From the face of appellant’s motion it appears that some of these crimes may be lesser included offenses of the others, depending upon the accusatory pleading and/or the evidence presented at trial. Thus, if appellant’s claim, that he was convicted and sentenced on lesser included offenses, is true, the convictions would be allowed to stand, but the sentences for the lesser included offenses would have to be vacated. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Monroe, 406 So.2d 1115 (Fla.1981). However, it is impossible to determine the merit of appellant’s contentions without the aid of, at least, the charging instrument, and possibly portions of the trial transcript. Therefore, it was error for the lower court to fail to attach these supporting documents.

Appellant’s second contention regarding the illegality of his sentence is that the trial court improperly imposed two mandatory minimum three year sentences, pursuant to section 775.087(2), Florida Statutes, on the first two counts for which appellant was convicted. If the crime charged in the second count is a lesser included offense of the crime charged in the first count, the second mandatory sentence was improperly imposed, and would also have to be vacated. See, Foster v. State, 409 So.2d 1132 (Fla. 4th DCA 1982).

Accordingly, the order of the court below is AFFIRMED in part, REVERSED in part, and REMANDED for attachment of those portions of the file and record which conclusively show appellant is entitled to no relief; or for an evidentiary hearing.

McCORD and MILLS, JJ., concur.


text:
    B. G. WILLIS PAINTING and Maryland Casualty Company, Appellants, v. B. G. WILLIS and the Division of Workers’ Compensation, Appellees.
    No. AD-388.
    District Court of Appeal of Florida, First District.
    May 18, 1982.

      Jerry V. Wilkey, Coral Gables, for appellants.
    Neil Chonin, and Joseph C. Segor, Miami, for appellees.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred: (1) in refusing to exercise her § 440.33(2), Fla.Stat., powers to compel the attendance of subpoenaed witnesses, (2) in awarding additional nursing services in the absence of any showing that claimant’s condition had changed, and (3) in ordering the E/C to pay claimant’s wife for attendant care services which included the performance of ordinary household chores. Claimant cross-appeals, contending that the deputy should have awarded attendant nursing care services on a 24-hour-a-day basis. We agree that the deputy’s failure to certify the E/C’s non-appearing witnesses to the circuit court pursuant to § 440.33(2) was error.

Claimant sustained serious back and arm injuries in an industrial accident on March 24, 1976. On August 21, 1978 claimant was found to be permanently totally disabled, and the E/C was ordered to pay claimant’s wife $75.00 per week for attendant nursing care services she was providing. On March 19,1980 claimant filed the petition for modification requesting, inter alia, an increase in the award of attendant nursing care services. When the matter came on for hearing on August 27, 1980 the claimant became so emotionally distraught that the hearing had to be continued. The hearing was reconvened on March 2, 1981. The claimant testified that he continued to require the attendant nursing care services previously awarded, but that his wife was no longer able to provide the services due to her own declining health. The wife testified that she had been performing attendant nursing care services for claimant, including housework, but that she was no longer able to provide the care her husband needed. At the conclusion of this testimony, the hearing was again continued at the instance of the claimant.

When the hearing was again reconvened on March 18, 1981, the deputy received evidence of the value of attendant nursing care services. However, the hearing was again continued to allow claimant to adduce the testimony of his physician as to the amount and type of attendant nursing care services he required. At the conclusion of the March 18 hearing, the E/C announced their intention to present live testimony of their doctors, whereupon the deputy advised counsel for the E/C to depose the doctors unless he was certain they would appear, as she did not want any further delay.

When the hearing was convened for the fourth time, claimant tendered the deposition testimony of his doctor to the effect that claimant needed attendant nursing care services at the rate of eight hours per day, seven days per week. However, the claimant’s doctor indicated that claimant did not need round-the-clock care, and that a portion of the eight hours per day care which he did need would be devoted to shopping, preparing and serving meals, and light housework. After tendering this deposition, the claimant rested, whereupon the E/C presented the live testimony of their psychiatrist. However, the other two doctors subpoenaed by the E/C failed to appear. Although the attorney for the E/C informed the deputy that he had personally spoken with the witnesses, and that they had assured him that they would honor their subpoenaes, the deputy refused to honor the attorney’s request that the witnesses be certified to the circuit court for possible contempt proceedings, pursuant to § 440.33(2). The deputy stated that the hearing was in the nature of an emergency hearing, and reminded the attorney for the E/C of her previous warning and admonition to depose the doctors rather than attempting to produce them live. In her order, the deputy awarded attendant nursing care services on the basis of eight hours per day, seven days per week, at the rate of $8.00 per hour.

Although we understand the deputy’s exasperation with the. continuing delays, and her desire to conclude the matter, we find that she abused her discretion in refusing to continue the hearing and certify the recalcitrant witnesses. The record clearly demonstrates that the prior continuances were had at the instance of claimant, or were necessitated by claimant’s conduct. The E/C had no opportunity to present their case until the final hearing and it was clearly the E/C’s right to present their witnesses live, rather than by deposition, if they chose to do so. The E/C’s attorney affirmatively represented to the deputy that the two non-appearing doctors had been duly subpoenaed, and that he and his secretary had spent hours in telephone communication with the doctors and their secretaries in order to insure their appearances. There is nothing more the attorney for the E/C could have done to assure the appearance of his witnesses, short of physically taking them to the hearing.

We also understand the disruption and inconvenience caused a working person who is obligated to respond to a subpoena. However, we note that doctors are well paid for their services in treating an injured worker, and are aware when they accept their fees for such services that the special knowledge they will gain through treating the worker may subsequently be required for a proper determination of the worker’s claim for compensation. Seasons Restaurant v. Jordanas, 9 FCR 119 (1974), cert. denied, 312 So.2d 738 (Fla.1975). We note also that the deputy failed to inquire as to why the doctors refused to honor their sub-poenaes, even though she spoke by telephone with one of the doctors during the hearing. Under the circumstances, we find that the deputy’s refusal to certify the witnesses to the circuit court was error.

We also find merit in the E/C’s contention that the deputy erred in awarding eight hours per day of attendant nursing care services since the record clearly demonstrates that a portion of the eight hours will be spent shopping, cooking, and performing other ordinary household services. Such services, if performed for claimant by a spouse or other family member are considered gratuitous, and cannot form the basis of an award for attendant nursing care services. Pan American World Airways, Inc. v. Weaver, 226 So.2d 801 (Fla.1969); State v. Handy, 413 So.2d 808 (Fla. 1st DCA, 1982). The claimant’s wife testified that she is no longer able to do the lifting required in caring for her husband, and that “we had to get a maid service,” but there is no evidence that she is unable to shop, cook or do light housework. Because the claimant’s doctor also testified that some unspecified portion of the eight hours per day of attendant nursing care services would be devoted to housework, we find that the award of eight hours care per day has no support in the record. Accordingly, upon remand the deputy should determine the extent of claimant’s need for bona fide attendant nursing care services, excluding any ordinary household services provided by claimant’s wife.

REVERSED and REMANDED with directions.

JOANOS and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    BOREE HARVESTING and Fidelity and Casualty Company of New York, Appellants, v. Lillian SANDERS, Appellee.
    No. AE-451.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    John Neil Buso, of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    No appearance for appellee.
   PER CURIAM.

The employer/carrier appeals from a final order awarding claimant permanent partial disability benefits based on a 75% loss of wage-earning capacity. Appellants contend that the deputy erred in the method used in computing the claimant’s earning capacity prior to the accident. We agree and reverse as to Point I.

Claimant suffered compensable injuries on March 25, 1978, resulting in a 12% permanent partial impairment to the body as a whole. The parties stipulated that claimant’s average weekly wage was $90.00. Claimant’s testimony supported this amount. However, the deputy found that claimant had a pre-injury wage-earning capacity of approximately $240.00 per week. There was no evidence in the record that claimant earned that amount for the thirteen weeks immediately preceding the accident.

The applicable law is clear. Wage-earning capacity before the injury is measured solely by the employee’s average weekly wage at the time of the injury as prescribed in Section 440.14, Fla.Stat. (1977). Other factors should not be taken into account. Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177 (Fla.1980); Board of County Commissioners v. Alman, 156 So.2d 850 (Fla.1963). Because claimant had been employed by the same, employer for the requisite 13-week period preceding the accident, only the wage computation method prescribed in Section 440.14(1) is applicable in determining claimant’s average weekly wage.

The deputy correctly used the average weekly wage in setting a compensation rate of $54.00. However, he determined the loss of wage-earning capacity from a 75% reduction in earning capacity based on a pre-injury earning capacity of $240.00. Given the fact that claimant’s average weekly wage was only $90.00, his determination that claimant’s earning capacity at the time of the accident was $240.00 per week was erroneous.

Appellants challenge the increase in disability from 12% to 75% on the ground of lack of a valid work search by claimant. We affirm as to Point II because there is competent, substantial evidence in the record to support a finding of an adequate work search.

Accordingly, we remand with instructions that the deputy shall use claimant’s average weekly wage at the time of the accident as the measure of pre-injury wage-earning capacity.

On remand, the deputy may, in his discretion, reevaluate his determination of claimant’s disability based on wage-earning capacity loss, in light of our instruction on Point I and our affirmance on Point II.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    CITY OF TAMPA, Appellant, v. David A. BARTLEY, Appellee.
    No. AF-55.
    District Court of Appeal of Florida, First District.
    May 18, 1982.

      Joseph G. Spicola, Jr., and Stephen M. Barbas, Asst. City Attys., Tampa, for appellant.
    Bruce A. Campbell, Melendi & Campbell, Tampa, for appellee.
   LARRY G. SMITH, Judge.

The City of Tampa appeals a worker’s compensation award on the grounds (1) the deputy commissioner erred in including certain employer’s pension contributions in computation of claimant’s average weekly wage, (2) and erred in his finding of a 45% disability based upon loss of wage earning capacity. We affirm in part, and reverse in part.

In computing the claimant’s average weekly wage, the deputy commissioner included the sum of $126.00 paid weekly by the City of Tampa, for the benefit of the claimant, pursuant to the terms and provisions of the City of Tampa Firefighters and Police Officers Pension Contract. Under Subsection 7(b) of the agreement, the employee is entitled to receive a disability benefit upon the occurrence of an injury which physically or mentally permanently incapacitates him from performing continuously the regular duties of a police officer. The injuries sustained by the claimant in his line of duty accident were such that he became entitled to benefits under this provision. We agree with the deputy commissioner’s conclusion that under this provision the claimant received a vested interest, a tangible benefit of real present-day value by virtue of the employer’s contributions for this purpose.

However, the weekly contribution of $126.00 also provides the funding for a longevity retirement benefit, for employees reaching the age of forty-six years with at least twenty years service with the Department (Subsection 7(a) of the agreement), and disability benefits for any nonservice connected injury, disease or disability, provided the employee has served at least ten years with the Department (Subsection 7(c) of the agreement). We agree with the appellant’s contention that these latter benefits, the longevity retirement benefit and the nonservice connected injury, disease or disability benefits, are not “vested,” and therefore do not meet the test of “tangible benefit of a real present-day value,” under State, Dept. of Health & Rehab. Services v. Ryan, 381 So.2d 269 (Fla.App.1980). We reject appellee’s contention that the recent cases, Florida Sheriffs Ass’n v. Dept. of Admin., 408 So.2d 1033 (Fla.1981), and City of Tallahassee v. Pub. Emp. Rel. Com., 410 So.2d 487 (Fla.1981), call for a different result.

That portion of the pension contributions which provide for claimant’s line of duty disability benefits would be includable in computation of average weekly wage in the same manner as premiums paid by the employer for an employee’s group health or accident insurance coverage. See Jess Parrish Memorial Hospital v. Ansell, 390 So.2d 1201 (Fla. 1st DC A 1980); Agrico Chemical Company v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). Therefore, on remand, the deputy commissioner must determine what portion of the $126.00 weekly benefit is allocable to this category of disability benefits.

We affirm the deputy commissioner’s findings and conclusions with respect to the claimant’s wage earning capacity loss except, however, to the extent that a recalculation of the claimant’s average weekly wage may affect the percentage of his wage earning capacity disability. We conclude that the rationale utilized by the deputy commissioner in determining claimant’s disability is sufficiently clear to enable judicial review. The evidence of claimant’s work search was adequate to support the findings of the deputy commissioner despite the fact, as the deputy commissioner recognized, the claimant has been somewhat “picky” about the jobs he has sought. The credibility and sufficiency of evidence to establish a good faith work search is a factual matter to be determined by the deputy. Pearson v. City of Miami Beach, 399 So.2d 1135, 1136 (Fla. 1st DCA 1981). We conclude also that it was proper for the deputy commissioner to consider claimant’s post-injury earnings in his determination of wage earning capacity. Kemp v. Miami Quality Concrete Co. Inc., 410 So.2d 199 (Fla. 1st DCA 1982).

Reversed and remanded for further proceedings consistent with this opinion.

MILLS and SHAW, JJ., concur.


text:
    Charles P. FAUCETT, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AI-327.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Charles P. Faucett, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Appellant seeks review of the Florida Parole and Probation Commission’s denial of his request that his presumptive parole release date be altered to more accurately reflect the convictions for which he was sentenced. We reverse.

On April 23, 1973, appellant entered pleas of guilty to two counts of robbery and one count of kidnapping. The kidnapping-charge alleged that appellant secretly confined and imprisoned the victim against his will, but did not allege that appellant held the victim for ransom. Thus, it is clear that appellant was convicted of false imprisonment and kidnapping under Section 805.01, Florida Statutes (1971), not kidnapping for ransom set out in Section 805.02, Florida Statutes (1971). A person adjudged guilty of false imprisonment under that statute was guilty of a felony in the second degree punishable by a maximum term of imprisonment of fifteen years. Unfortunately, appellant was erroneously sentenced to life imprisonment on his kidnapping conviction, that sentence to run concurrently with two life sentences imposed on his robbery convictions.

On June 12, 1979, appellant was interviewed for parole consideration. His offense characteristic was listed as kidnapping — Most Serious II, and reflected the life sentence imposed for that offense. His salient factor score was computed and a presumptive parole release date at the top of appellant’s matrix time range was adopted by the Commission.

Subsequent to that determination, appellant filed a 3.850 motion with the trial court to correct his false imprisonment and kidnapping sentence. That sentence was corrected to reflect the maximum term of imprisonment of fifteen years.

Based upon this new information, appellant requested the Commission to recompute his presumptive parole release date using one of his robbery convictions as his offense characteristic, arguing that the robbery convictions, for which he is serving life sentences, were more serious offenses than the false imprisonment offense. The Commission denied the request and affirmed the previously established release date. We hold that it was error for the Commission to refuse to recompute appellant’s presumptive parole release date.

In choosing which of the multiple convictions should constitute the offense characteristic, the Commission is required to use the most serious of the offenses, and the other offenses may be used as aggravating factors. § 947.165, Fla.Stat. (1979); Fla.Admin.Code Rule 23-19.01(5). Additionally, the parole guidelines note that if an offense is not listed, the proper risk category should be determined by comparing the offense with other listed offenses of similar severity. The risk categories established for offense characteristics used at the time appellant was interviewed for parole consideration did not specifically list the offense of false imprisonment. In such a situation, we hold the Commission should consult and be bound by the statutory classification of the conviction.

Accordingly, we remand the case to the Florida Parole and Probation Commission for the purpose of determining the most serious offense based on the rules that were in effect at the time appellant was interviewed for parole consideration and the statutes which were in effect at the time appellant committed the crimes. Appellant’s matrix time range will be recalculated based upon the most serious offense. The Commission, in the appropriate exercise of its discretion, may use the other convictions as aggravating factors in establishing a proper presumptive parole release date for appellant.

The cause is remanded to the Commission for proceedings consistent with this opinion.

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

      . The Objective Parole Criteria Guidelines as amended June 26, 1979, place false imprisonment in a risk category of High. See, Fla.Admin.Code Rule 23-19.05.

      . We note that at appellant’s biennial review, his PPRD was reduced 12 months based upon his good institutional conduct. When appellant’s PPRD is reestablished, he should retain the benefit of that Commission action.


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

text:
    Janice Marie KINDELL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1884.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.

      Bennett H. Brummer, Public Defender, Robert R. Schrank and Elliot H. Scherker, Asst. Public Defenders and Bart J. Eagle, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant appeals her conviction of multiple offenses of aggravated assault with a deadly weapon committed upon Betty Jean Williams (Count I) and Wallace Hyman (Count II); felonious display of a firearm (Count III); and discharge of a dangerous weapon into an occupied dwelling (Count IV). The trial court stayed and withheld imposition of judgment and sentence but nonetheless ordered that the defendant be placed upon four five-year concurrent terms of probation with a special term and condition thereof, and with respect to Counts I and II, that she be imprisoned for three years.

It is the defendant’s contention that during closing argument the prosecutor made an impermissible comment upon her right to silence. In the alternative, she argues the state adduced evidence of the defendant’s failure to produce witnesses at trial and later exploited that improper issue by arguing it to the jury during summation.

We are of the view that because the matter was not properly preserved for appellate review it cannot serve as a basis for reversal.

The alleged error occurred during the state’s examination of one of the arresting officers [through whom the state produced the defendant’s confession] as follows:

PROSECUTOR: Did the defendant ever tell you that she was with two other women at the time this incident took place?
POLICE OFFICER: No. She didn’t say anything about two other women.

During closing argument, the assistant state attorney made the following argument to the jury:

PROSECUTOR: One of the best defense witnesses in this case would have been the two people that were with the defendant when she was arrested.
Did you hear one word from either of those two people that were with the defendant when she was arrested? Were either of those people called?
DEFENSE COUNSEL: Objection, Your Honor, I move for a side-bar at this time.
THE COURT: Motion for a side-bar at this time denied. I will hear it later.
PROSECUTOR: Were either of those two witnesses called? Of course not. You did not hear any testimony from them, did you?

Following completion of closing arguments, the jury was immediately instructed and retired to deliberate. At that point, the following transpired:

DEFENSE COUNSEL: If it please the Court, at this time in reference to my objection during the State’s final argument, I would make a motion for mistrial.
At that point, I believe the State, and the record will bear me out, made reference to the fact why didn’t the defense bring in the two people Janice Kindell was with, et cetera, et cetera. I believe that is totally uncalled for.
It reflects not only on the defendant’s right to remain silent, that the defendant in this case did, in fact, remain silent. It is reversible error, Your Honor, in not allowing me to make my objection. You were not in a position to give a curative instruction. I believe at this point a mistrial should be granted.
THE COURT: You chose to do it at side-bar. Most counsel like to make their objections to the Court. Nothing was suggested about a curative instruction.
In fact, I did give them one. I told them the burden was not on you. Your client is presumed innocent. The burden is on the State.
DEFENSE COUNSEL: If I might respond?
THE COURT: I do not think it is necessary unless you want to put something on the record for later reading.
DEFENSE COUNSEL: Yes, Your Honor. That would be the purpose.
THE COURT: It is really not necessary.
DEFENSE COUNSEL: I felt at the time a side-bar could have been granted, should have been granted so that I could have requested a curative instruction.
I will state for the record I do not believe a curative instruction would have corrected what is harmful and prejudicial error.
THE COURT: All right, sir.
DEFENSE COUNSEL: May I have a ruling?
THE COURT: I deny it. I already denied it, counsel, [emphasis supplied]

We have been unable to locate any case directly holding that comments of this nature constitute an impermissible comment on the defendant’s right to silence. However, assuming arguendo that it was such a comment, plainly, under the colloquy above recited, defense counsel did not make and save the point for appellate review either by timely objection, curative instruction, or motion for mistrial as required by State v. Cumbie, 380 So.2d 1031 (Fla.1980) and Clark v. State, 363 So.2d 331 (Fla.1978).

Nonetheless, the defendant contends here that, under the so-called doctrine of futility, it was unnecessary, in the posture of this case, to object because, after the jury had retired and the defendant’s sidebar request had been heard, the trial court stated: “I already denied it, counsel.” In Brown v. State, 206 So.2d 377 (Fla.1968), our Supreme Court recognized that an attorney is not required to present a written request for jury instructions where the court made it abundantly clear that it would not give the charge, whether requested in writing or not, stating:

A lawyer is not required to pursue a completely useless course when the judge has announced in advance that it will be fruitless.

206 So.2d at 384. Likewise, in Birge v. State, 92 So.2d 819 (Fla.1957), the trial court indicated that the presentation of nominal evidence would exclude the defendant’s right to open and close before the jury and that an objection was unnecessary. There, Justice Thornal, speaking for the Court, stated:

While it is true that on appeal every reasonable presumption is extended in favor of the correctness of the ultimate judgment of the trial court and the burden is upon the appellant to show reversible error, nevertheless, it is certainly unnecessary that an accused undertake to accomplish an obviously useless thing in the face of a positive adverse ruling by the presiding judge. In this case the trial judge had clearly and specifically announced his ruling to the effect that the appellant would not be permitted the opening and closing arguments. This ruling was announced just before the State rested its case, [emphasis supplied]

92 So.2d at 822.

In both Brown and Birge, supra, the defense counsel’s tactical request was made prematurely but the defendant’s ultimate position had been virtually postured out so as to enable the trial court and opposing counsel to be fully apprised as to the defendant’s position. To have required the defendant to timely and formally lodge a proper objection would have amounted to nothing more than to mandate the undertaking of an idle gesture. In the present ease, defense counsel only requested a sidebar conference, which the trial court postponed until the jury had been instructed and retired to deliberate. The purpose of an objection is to enlighten the trial court concerning the proper direction and rulings that should be made by it during the course of a trial, thereby obviating prejudicial error and the necessity of a new trial. In this case, defense counsel did not enlighten the trial court concerning his ultimate position. The trial court’s ruling was simply too ambiguous, when gauged by objective standards, to presume that the trial court knew or ought to have known of the defendant’s objection contemporaneously with the prosecutor’s improper tactics. Consequently, we reject the defendant’s argument on this point.

Although a side-bar conference may be a preferable method for resolving a dispute of such a delicate nature, neither the state nor the defendant enjoys the right to side-bar conference. Unless counsel clears such a procedure in advance with the individual trial judge, they ordinarily must abide by the teachings of Clark v. State, supra, and lodge objections and requests for curative instructions contemporaneously with the improper comment. In the case of a motion for a mistrial, it may be made sometime during closing argument but, at the very latest, it must be presented before the jury retires to deliberate. State v. Cumbie, supra.

The defendant also claims that the evidence does not demonstrate that the victims, Williams and Hyman, were placed in fear of imminent bodily harm. State v. White, 324 So.2d 630 (Fla.1976). We disagree. The evidence showed that the defendant, who, at the time of the incident, was pregnant, became enraged because of an insulting remark from her former boyfriend. Due to her condition, she proclaimed her inability to fight and stated that she would leave and return with a gun. She did, in fact, leave the apartment. Upon her return, she approached the door and one of the victims heard her remark that she was going to start shooting if no one opened the door. Shots then penetrated the door striking both victims. A threatening weapon need not be viewed by the assaulted victim to give rise to a well-founded fear of violence. United States v. James, 452 F.2d 1375 (D.C.Cir.1971). The defendant’s verbal threats, that she would deal with the victims upon her return and would start shooting if the door was not opened, constituted sufficient circumstances to warrant a reasonable inference in the minds of the intended victims that bodily harm was imminent. Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977).

The defendant also contends that her conviction of felonious display of a firearm must be reversed because the elements necessary to sustain that charge also form the basis of her conviction of the separate charge of aggravated assault with a dangerous weapon. In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the Supreme Court held that the double jeopardy clause does not prohibit separate convictions for the separate statutory offenses even when they arise from a single criminal episode. Consequently, we must affirm the defendant’s conviction for the felonious display of a firearm. However, the defendant cannot be separtely sentenced for the aggravated assault and possession of a firearm because the firearm charge is a lesser included offense of the felony. State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, supra. Consequently, the defendant’s sentence for the display of a firearm is vacated.

Although the defendant has not raised this point, the sentence imposed for the aggravated assault may be illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Because the trial court upon remand for correction of the sentence may withdraw the sentence and impose a new sentence, Singleton v. State (Fla. 5th DCA 1982) (Case no. 81-379, opinion filed February 3, 1982); Gomez v. State, 409 So.2d 1096 (Fla. 3d DCA 1981); Flynn v. State, 413 So.2d 36 (Fla. 1st DCA 1981); Alexander v. State, 402 So.2d 485 (Fla. 2d DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981), the appellant may wish to decline correction of her sentence. Accordingly, we do not remand for correction of the sentence but observe that this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850. Coffey v. State, 403 So.2d 1152 (Fla. 2d DCA 1981).

Affirmed in part and reversed in part.

DANIEL S. PEARSON, Judge,

concurring specially.

The impermissible comment in this case has not the slightest thing to do with the ground belatedly urged by defense counsel. It is understandable, therefore, that Judge Nesbitt is “unable to locate any case directly holding that comments of this nature constitute an impermissible comment on the defendant’s right to silence.” My concern, however, is that Judge Nesbitt’s opinion, by not addressing the real ground for objection, leaves the implication that the prosecutor’s conduct, because it did not offend against the asserted ground of the defendant’s right to remain silent, was inoffensive. Nothing could be further from the truth.

Some background is in order. Several hours after the alleged crime, the defendant was arrested at her home. Two women were with the defendant at the time of her arrest. There is not even a suggestion in this record that these women were with Kindell when the crime occurred. The women gave no statements whatsoever to the police, much less statements indicating any knowledge of the subject events or Kindell’s whereabouts when the alleged crime was committed. Lastly, Kindell filed no notice of alibi or even intimated an alibi defense during the trial.

Enter the straw man. The prosecutor asked the officer who took the defendant’s confession whether ihe defendant told him she was with two other women at the time of the incident. The question and answer seemed, at the time, innocuous. The officer accurately answered “No.”

The straw man’s life was short lived. In closing argument, the prosecutor told the jury that the defendant failed to call the two women who were with her at the time of her arrest. The suggestion was that the jury could (and, indeed, should) draw an inference against the defendant that the testimony of these witnesses would not have supported the defendant’s “alibi.”

Even if, arguendo, the defendant had interposed an alibi defense, the prosecutor’s argument to the jury, under the circumstances of this case, would have been objectionable. An inference adverse to the defendant is permitted when the defendant fails to call witnesses only when it is shown that the witnesses are peculiarly within the defendant’s power to produce and the testimony of the witnesses would elucidate the transaction, that is, that the witnesses are both available and competent. Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893); United States v. Blakemore, 489 F.2d 193 (6th Cir. 1973); Gass v. United States, 416 F.2d 767 (D.C.Cir.1969) ; Lane v. State, 352 So.2d 1237 (Fla. 1st DCA 1977) (Rawls, J., dissenting). Compare Buckrem v. State, 355 So.2d 111 (Fla.1978) (recognizing rule, but finding that comment was proper where witnesses, one of whom was defendant’s wife, were available and, in light of defendant’s stated alibi defense that he was in the company of these witnesses, were competent to give supportive testimony); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975) (recognizing rule, but finding that comment was proper where defendant in opening statement said he would call his wife as alibi witness, the wife, therefore, being definitively available and competent). In the present case, the State not only totally failed to establish the competency and availability of the so-called alibi witnesses as a predicate to its argument, but — even more egregiously — itself created, in order to later destroy, the alibi defense.

I must agree, however, that the error was not preserved for review. A motion for a side bar, although apparently quite popular in these parts, and perhaps mentioned in some esoteric compendium of trial motions, is, in my view, the functional equivalent of a child raising his hand in the classroom. Since it is a time-honored rule that, in a courtroom, a party must state the nature and grounds of any objection, a “motion for side bar,” by itself, preserves nothing for review. That being the case, the defendant must look to her subsequent motion for mistrial, which, as Judge Nesbitt correctly observes, came too late to preserve the matter for our review. See State v. Cumbie, 380 So.2d 1031 (Fla.1980). But even if, arguendo, the defendant’s first real opportunity to make the motion for mistrial did not come until after the jury was sent out to deliberate, she fares no better in preserving the point. At no time did she express the view that the prosecutor’s argument required a mistrial. Instead, her stated ground for mistrial was that the court’s refusal to conduct a side bar deprived her of a curative instruction. Thus, since the defendant’s announced belief was that a curative instruction would have remedied the prosecutor’s improper comment, it was incumbent on her, if she wanted an immediate cure, to request it. While a motion for mistrial may be delayed until the conclusion of the prosecutor’s argument without losing its vitality, a request that the jury be immediately admonished to disregard an improper comment, by definition, may not be postponed. If, then, as here, the defendant is concededly satisfied that a curative instruction would sufficiently remedy the impropriety, and fails to specifically request that one be given, she cannot thereafter convert her own omission into a ground for mistrial. However, had a timely motion for mistrial directed to the prosecutor’s improper comment been made and denied, I would vote to reverse.

My final comments relate to the majority’s view that the imposition of a three-year incarceration period as a special condition of probation is a fundamental sentencing error under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). The defendant was convicted of aggravated assault, having had in her possession a firearm. Section 775.087(2)(a), Florida Statutes (1977), requires that a defendant so convicted be sentenced to a minimum term of imprisonment of three years. The statute further states that imposition of sentence shall not be withheld. The record reflects, however, that the trial court did, contrary to the statute, withhold imposition of sentence and place the defendant on probation for five years with three years of incarceration as a condition of probation. In my view, the sentence imposed violates the clear language of Section 775.087, not Villery. Where a minimum mandatory three-year term is imposed and a defendant is statutorily ineligible for parole until the three years have been served, the concern of the court in Villery that a defendant will be deprived of parole consideration is nonexistent. Thus, while I see a technical, but no practical, impediment to the sentence pronounced on the defendant herein, I see none at all if upon resentencing the court were to impose a split sentence of three years of incarceration to be followed by two years of probation. Such a sentence would satisfy the requirements of Section 775.-087(2) and be an obvious exception to Vil-lery.

BASKIN, Judge

(Concurring in part in Judge NESBITT’s opinion and concurring in part in Judge DANIEL S. PEARSON’s opinion).

I concur in Judge Pearson’s opinion on the question concerning preservation of objections and motions for mistrial.

Concerning the Villery question, however, I disagree with Judge Pearson’s position and concur in the result expressed in Judge Nesbitt’s opinion.

      . In fact, the arresting officer did not even get the names of the two women with Kindell at the time of her arrest.

      . Kindell did not testify and called no witnesses. Her defense, despite her confession, was that the State’s witnesses were wrong when they identified her as the perpetrator.

      . When an arrested defendant has, as here, appropriately waived the right to counsel and right to remain silent and has elected to talk to the police, it does not offend against any constitutional right of the defendant to elicit from the interrogating officer testimony that the defendant did not mention certain things. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). But the question of the relevancy of such an omission is entirely separate from its admissibility over constitutional objection. See Jenkins v. Anderson, supra, 447 U.S. at 243, 100 S.Ct. at 2132, 65 L.Ed.2d at 98 (Stevens, .1., concurring). Thus, the omission of defensive claims at the time of interrogation is relevant to disprove such claims when made at a later trial. Here there was no in-trial alibi claim, and therefore, no relevancy to the question. The question’s purpose was to set up the prosecutor’s later argument.

      . The same rule applies to the State’s failure to call witnesses.

      . In Gass, the defendant, during his testimony on the defense of alibi, named eight people who saw him in a theater at the time of the alleged crime. The prosecutor argued that defendant’s failure to call these people showed that their testimony would be unfavorable to defendant’s alibi. The court, conceding the competency of their potential testimony, held that the comment was improper, since there was no showing that it was within defendant’s power to produce the witnesses.

      . The affirmance in Lane is based on harmless error, not any disagreement with the arguments made in Judge Rawls’ dissent.

      . I do, however, glean from the trial court’s later remarks that it knew that defense counsel wanted to say something pertaining to his objection and the case.

      . The trial court’s earlier statement, “I will hear it later," certainly cannot be construed as an announcement that a motion for mistrial would be fruitless, so as to excuse the defendant from making a timely motion. Compare Thomas v. State (Fla.1982) (Case No. 60,477, opinion filed March 25, 1982).

      . Since the defendant erroneously viewed the prosecutor’s statement as a comment on the defendant’s silence, the trial court might have properly denied an instruction designed to meet that objection. Had defendant’s objection been, as it should have, to the impropriety of the prosecutor’s comment on the defendant’s failure to call witnesses, then the defendant’s ability to procure the witnesses and their competency to testify could have been explored, Gass v. United States, supra. Indeed, Gass suggests that before such comments are made, a ruling from the trial court should be obtained. Presumably, the trial court will then decide if the party seeking to make the comment about failure to call has shown that the uncalled witnesses are competent and available. If the argument is then permitted, the jury should be instructed on the possible adverse inference to be drawn from the failure to call. In the present case, had this procedure been followed, the argument would not have been made. Moreover, I point out that the trial court’s standard instruction on burden of proof does not cure, as the trial court believed, the improper comment in the present case.


author:
FERGUSON, Judge.
      DANIEL S. PEARSON, Judge, specially

text:
    Michael C. WILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-936.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Michael C. Willis, in pro. per.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from a sentence corrected pursuant to Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Appellant was originally placed on five years probation with a special condition that he serve three years imprisonment. On his motion to correct sentence the trial court vacated the probation and sentenced the defendant to five years imprisonment.

Appellant contends that the resentence constitutes greater punishment than was originally imposed and is therefore unconstitutional; that any interpretation of the Villery decision to sanction a harsher resen-tence is contrary to the limitations set out in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (to assure the absence of vindictiveness on the part of the judge against defendant for having successfully attacked his first conviction, whenever a judge imposes a more severe sentence after a new trial, he must affirmatively state the reasons and facts upon which such increased sentence is based)..

In Villery, supra, the supreme court authorized the trial court, upon corrective re-sentencing, to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given, unless a condition of probation had been violated. This rule has been restated in several Florida cases. Gomez v. State, 409 So.2d 1096 (Fla. 3d DCA 1982). Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981). We must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy. Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982) (question certified).

Affirmed.

DANIEL S. PEARSON, Judge, specially

concurring.

As I have previously noted, see Herring v. State, 411 So.2d 966, 970 n. 11 (Fla. 3d DCA 1982), I do not agree that because a change of sentence complies with Villery, it cannot, ipso facto, violate due process under North Carolina v. Pearce. Yet I take this to be the majority’s meaning when it declares that “[w]e must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy.” (emphasis supplied). I concur, however, in the affirmance because there is not the slightest showing in the record that as a matter of fact the corrected sentence will increase the defendant’s incarceration beyond three years.


author: SHARP, Judge.

text:
    Rodney K. BRADEN, Judy Braden and Randy Braden, Appellants, v. FLORIDA POWER AND LIGHT COMPANY, et al., Appellee.
    No. 80-1473.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    Charles L. Handlin, of Handlin, Hefferan, Lanigan & Wright, Orlando, for appellants.
    Palmer W. Collins, Melbourne, for appel-lee.
   SHARP, Judge.

The Bradens appeal from a final summary judgment in favor of Florida Power and Light Company, the defendant below. In its motion for summary judgment, Florida Power and Light assumed it had been negligent in splicing a severed power line. The breaking of this negligently repaired power line was the first in a series of events which ended with a jar of gasoline bursting into flames and injuring the plaintiff, Randy Braden. The lower court ruled Florida Power’s negligence could not have been the legal cause of Randy Braden’s injuries because of intervening and unforeseeable circumstances. We reverse.

The record on appeal shows that the owner of property near the defectively repaired power line employed Steve Sharek to remove some Australian pines. Steve’s father, Albert, came to watch the work, and he brought along his grandson, Randy Bra-den. One tree had a wasp nest in it. Steve asked Albert to get something to put on the nest after the tree was felled. Albert put some gasoline into a jelly jar, and Randy was holding the jar when the tree with the wasp nest was being cut. As the tree fell towards the ground, the top of it came into contact with the repaired power line, and the line broke. After the line broke, Florida Power’s automatic safety equipment failed to de-energize the line immediately as it should have. The broken, energized line, which was a primary conductor, violently discharged electrical energy and ignited the gasoline fumes in the jelly jar. Randy was seriously injured by the resulting flames.

The events leading to Randy’s injuries occurred as if they were a line of dominoes falling one on the other. Appellee argues that because the exact combination of circumstances leading to Randy’s injuries was unforeseeable, it should not be liable. However, appellee should be liable for those injuries if it could have foreseen that some injury would likely result in some manner, similar to that which actually happened, as a consequence of its negligent acts. Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA 1981). In Crislip the court said:

If the harm that occurs is within the scope of danger created by the defendant’s negligent conduct, then such harm is a reasonably foreseeable consequence of the negligence. The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact. (Emphasis in original).

Id. at 1117.

In this case, Randy’s kind of injury appears to fall within the scope of danger created by the negligently repaired power line, and no event in the series was sufficiently independent and intervening as to break the chain of causation as a matter of law. Fries v. Florida Power and Light Company, 402 So.2d 1229 (Fla. 5th DCA 1981). Considering the vulnerability of power lines to objects coming into contact with them, it is not unforeseeable that something, such as a falling tree, would cause Florida Power’s negligent splice to break. With a broken power line discharging electrical current in violent bursts, it is not unlikely that the discharge would set something nearby on fire. With the prevalence of flammable items in our modern world (houses, clothes, rubbish piles, gasoline, etc.) which co-exist with power lines, it is not unforeseeable that someone, like Randy, would be burned and injured as a consequence of the fallen, energized line causing a fire. At the very least, the question of foreseeability should have have been resolved by a jury. Overby v. Wille, 411 So.2d 1331 (Fla. 4th DCA 1982).

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . The top of an Australian pine is relatively flexible and light. The top of the tree fell against some lower lines as well, but only the top line, which had been spliced, broke.

      . Woodbury v. Tampa Waterworks Company, 57 Fla. 243, 49 So. 556 (1909); Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969).

      . Loftin v. McCrainie, 47 So.2d 298 (Fla.1950); Willis v.


author: ORFINGER, Judge.

text:
    Milton BELL, Appellant, v. STATE of Florida, Appellee. Stephen James GRANT, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-266, 81-596.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden and C. Michael Barnette, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   ORFINGER, Judge.

Appellants were tried as co-defendants on charges of second degree grand theft. On their motion, the trial court declared a mistrial because of alleged prosecutorial comment on appellants’ right to remain silent. When the case was re-set for trial, each appellant moved to dismiss on the ground of former jeopardy, and such motions were denied. The subsequent trial resulted in the conviction of both defendants, from which separate appeals followed. We consolidate them because they involve the identical issue, and each is affirmed.

Double jeopardy generally is not a defense to a subsequent prosecution when a mistrial had been granted in the original trial upon the defendant’s motion or with his consent or where the circumstances clearly required the mistrial in the interest of justice. McLendon v. State, 74 So.2d 656 (Fla.1954); State v. Iglesias, 374 So.2d 1060 (Fla.3d DCA 1979). However, double jeopardy will bar a second prosecution when the mistrial resulted from judicial or prosecuto-rial overreaching. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1975); United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978); State v. Kirk, 362 So.2d 352 (Fla. 1st DCA 1978).

Mere error by the judge or prosecutor resulting in the defendant’s request for mistrial is not sufficient to bar reprosecution. Dinitz. The double jeopardy clause protects a defendant against governmental actions intended to provoke a mistrial. It bars retrials where bad faith conduct by the judge or prosecutor goads the defendant to request a mistrial. As expressed in Dinitz:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad faith conduct by judge or prosecutor,” United States v. Jorn, supra, 400 U.S. [470] at 485, 91 S.Ct. at [547] 557, [27 L.Ed.2d 543 at 556], threatens the “[h]ar-rassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant. Downum v. United States, 372 U.S. [734] at 736, 83 S.Ct. [1033] at 1034, 10 L.Ed.2d [100] at 102. See Gori v. United States, 367 U.S. [364] at 369, 81 S.Ct. [1523] at 1526, 6 L.Ed.2d [901 at] 905; United States v. Jorn, supra, 400 U.S. [470] at 489, 91 S.Ct. [547] at 559, 27 L.Ed.2d [543] at 558 (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U.S. [684] at 692, 69 S.Ct. [834] at 838, 93 L.Ed. at 979.

96 S.Ct. at 1081.

In State v. Iglesias, 374 So.2d 1060 (Fla.3d DCA 1979), the court was asked to expand the Dinitz rule to include prosecuto-rial misconduct amounting to gross negligence, although not calculated by the prosecutor to provoke a mistrial. The court declined that invitation, saying:

Relying on United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976), and United States v. Beasley, 479 F.2d 1124 (5th Cir. 1973), the defendants argue that double jeopardy should also bar a retrial of the defendant when the prosecuting attorney engages in misconduct amounting to gross negligence which in turn prompts a defendant to ask for a mistrial. We cannot agree. No Florida case has ever accepted this expanded exception, although the First District Court of Appeal in State v. Kirk, 362 So.2d 352 (Fla. 1st DCA 1978), adverted to it without expressing [sic] adopting same. We decline to incorporate such an expanded exception into the law of this state.

Id. at 1063.

We, too, decline to engraft this expansion of the rule into the law of this state. Even if the conduct of the prosecutor was improper (a point we expressly do not decide), the trial judge did not find that it was action calculated in bad faith to provoke a mistrial. There was no error in denying the motion to dismiss.

Appellants have filed supplementary briefs claiming insufficiency of the infor-mations to allege the intent of defendants to permanently deprive the victim of his property, relying on Baxley v. State, 411 So.2d 194 (Fla. 5th DCA, 1981). The infor-mations here charged that defendants took the property “with the intent to deprive said owner or custodian of a right to the property . . . and to appropriate the property to their own use.” The omission of the word “permanently” as a modifier of “deprive” may be an imperfect allegation of an element of the crime, but it is not a completely omitted one. There was no motion to dismiss directed to the sufficiency of the information, and the omission is not fundamental error. Thus, the omission of the word “permanently” may not be raised for the first time on appeal. See Brewer v. State, Fla.App., 413 So.2d 1217 (Fla. 5th DCA, 1982), Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981).

The judgments of conviction are

AFFIRMED.

COBB and COWART, JJ., concur.

      . Appellants’ counsel in closing argument had called the jury’s attention to persons who allegedly had witnessed the offense, but who had not been called by the prosecutor, asking the jury to consider that they might not have the whole story because of the missing witnesses. In response, the prosecutor told the jury that if there were any witnesses who could testify to any facts helpful to the defense, they would have been called by the defense. The prosecutor’s comment appears to have been invited by the remarks of defense counsel, but there is no need for us to decide the correctness of the order granting the mistrial, since that issue is not involved in this appeal.

      . The Supreme Court and this court have permitted comment by prosecutors on the unre-butted nature of the testimony as not being a comment on defendant’s right to remain silent. See, e.g., White v. State, 377 So.2d 1149 (Fla.1979); State v. Jones, 204 So.2d 515 (Fla.1967); Elam v. State, 389 So.2d 221 (Fla. 5th DCA 1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA), aff'd, 394 So.2d 407 (Fla.1980).


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. Mike MILLER, Appellee.
    No. 81-1340.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Stephen A. Weinstein, Orlando, for appel-lee.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing an information under the criminal summary judgment rule 3.190(c)(4). This rule in pertinent part says if “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant” then he is entitled to have the charge dismissed.

The question for us to decide is whether the facts of the case establish a prima facie case. We are of the opinion the facts do state a prima facie case of guilt and quash the order.

The parties agreed before the trial judge that all the material facts are as set out in the appellee’s “C — 4” motion:

1. The defendant herein was charged with violation of Florida Statute 790.01, unlawfully carrying on or about said defendant’s person a concealed firearm, to-wit: a hand gun.
2. Defendant was originally placed under arrest for a traffic violation by a Deputy Sheriff of Orange County, Florida, while defendant was riding a motorcycle. After the defendant was directed to remove himself from the motorcycle, the Deputy located a 22 [sic] caliber revolver in a pocket of defendant’s jacket.
3. At the time defendant was stopped for the alleged traffic violation, defendant had attempted to deliver the subject revolver for sale to the home of Jerry Thomas who previously indicated to defendant his interest in purchasing the subject revolver.
4. Because Jerry Thomas was not home at the time when defendant delivered the subject revolver, the defendant proceeded to return home with the revolver when he was stopped by the Deputy Sheriff.
5. The motorcycle on which the defendant was riding does not have a glove-box compartment or any carrying facilities for objects such as the subject revolver.
6. The defendant did not display the subject revolver in a careless or dangerous manner at any time material hereto.

The state demurred to the motion to dismiss asserting that “as a matter of law the facts establish the crime charged.” The statute proscribes the carrying of “a concealed firearm on or about his person.” Section 790.01(2), Florida Statutes. There are certain exceptions which are set out in section 790.25(3):

(3) EXCEPTIONS. — The provisions of ss. 790.05 and 790.06 shall not apply in the following instances and, despite said sections, it shall be lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:
(a) Members of the Militia, National Guard, Florida State Guard, Army, Navy, Air Force, Marine Corps, Coast Guard, the organized reserves, and other armed forces of the state and of the United States, when on duty, or when training or preparing themselves for military duty, or while subject to recall or mobilization;
(b) Citizens of Florida subject to duty in the Armed Forces under s. 2, Art. X of the State Constitution, chapters 250 and 251, and under federal laws, when on duty or when training or preparing themselves for military duty;
(c) Persons carrying out or training for civil defense duties under chapter 252;
(d) Sheriffs, marshals, prison or jail wardens, policemen, Florida highway patrolmen, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers, their deputies and assistants, full-time paid peace officers of other states and of the Federal Government who are carrying out official duties while in Florida;
(e) Officers or employees of the state or United States duly authorized to carry a concealed weapon;
(f) Guards or messengers of common carriers, express companies, armored car carriers, mail carriers, banks, and other financial institutions, while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state;
(g) Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors’ gun shows, conventions, or exhibits;
(h) A person while engaged in fishing, camping, or lawful hunting, or while going to or returning from a fishing, camping, or lawful hunting expedition;
(i) A person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person while engaged in the lawful course of such business;
(j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law, or while going to or from said place;
(k) A person firing weapons in a safe and secure indoor range for testing and target practice;
(l) Any person traveling by private conveyance when the weapon is securely encased, or in a public conveyance when the weapon is securely encased and not in person’s manual possession;
(m) Any person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his home or place of business or to a place of repair or back to his home or place of business;
(n) A person possessing arms at his home or place of business;
(o) Investigators employed by the several public defenders of the state, while actually carrying out official duties within the judicial circuits in which they are employed, provided said investigators:
1. Are employed on a full-time basis;
2. Meet the official training standards for firearms as established by the Police Standards and Training Commission as provided in s. 943.12(1) and the requirements of ss. 493.21(2)(a) and 943.13(l)-(4); and
3. Are individually designated by an affidavit of consent signed by the employing public defender and filed with the clerk of the circuit court in the county in which the employing public defender resides.

We have carefully considered each of these exceptions and cannot find one which allows this appellee to drive his motorcycle to someone’s house to sell a firearm which he is carrying concealed. It should be added, parenthetically, that it has not been shown that this appellee is a person in the business of dealing in firearms as is contemplated under exception (i). Appellee has argued that he falls within exceptions (j), (1) and (m). In looking at his sworn motion to dismiss he has not shown he was taking the firearm to or from testing or target practice so he cannot fall within exception (j). His firearm was in his jacket pocket, and he does not say it was “securely encased,” so he does not fall under exception (I). See Cates v. State, 408 So.2d 797 (Fla. 2d DCA 1981). Finally, he was not taking the firearm from the place of purchase or place of repair so he does not fall within exception (m). Appellee has argued that the statute is “unclear and ambiguous” and “lacks clarity.” We disagree. As it pertains to this case, the statute seems clear and unambiguous; appellee apparently violated it by carrying a concealed firearm and he did not fall within any of the listed exceptions.

The order dismissing the information is quashed and this cause remanded for further proceedings.

ORDER QUASHED; CASE REMANDED.

COBB and SHARP, JJ., concur.