source: Caselaw Access Project

license: Public Domain

text:
    Joseph Robert SPAZIANO, a/k/a Crazy Joe, Appellant, v. STATE of Florida, Appellee.
    No. 50250.
    Supreme Court of Florida.
    Jan. 8, 1981.
    Rehearing Denied March 6, 1981.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton and David P. Gauldin, Asst. At-tys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a direct appeal from the imposition of a death sentence after the appellant had been convicted of first-degree murder. After receiving a jury recommendation of a life sentence for the murder conviction, the trial judge imposed the sentence of death. For the reasons expressed, we affirm the conviction but find we must remand for resentencing because the trial judge relied in part on information not available to the jury or the defendant in imposing the death sentence, contrary to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and also relied upon nonstatutory aggravating factors, in violation of section 921.141, Florida Statutes.

The material facts reflect that the skeletal remains of two bodies were discovered at the Altamonte city dump. One body was positively identified through the use of dental records as that of Laura Harberts. The appellant, Robert Spaziano, was charged with the murder of Harberts, and the principal witness for the state was Ralph Dili-sio, a sixteen-year-old acquaintance of the appellant. Dilisio testified that Spaziano often bragged about the girls he had mutilated and killed, and on the occasion Dilisio and another individual accompanied the appellant to the Altamonte dump site where Dilisio saw two corpses, both covered with blood. Dilisio stated that Spaziano claimed responsibility for these killings; one of the corpses was determined at trial to have been Laura Harberts.

The appellant attacked Dilisio’s testimony as being unreliable because at the time he viewed the corpses, Dilisio had been taking numerous types of drugs on a regular basis for at least a year. Defense counsel challenged the sufficiency of Dilisio’s recall and perception abilities because of the drug habit, although Dilisio testified that on the particular day of the sighting he had not taken any drugs. Dilisio was able to successfully direct the police to the site where the corpse of Laura Harberts was found.

After receiving its instructions, the jury began its deliberations at 4:39 p. m. and at approximately 8:30 p. m. the court sent the jury to dinner. Upon its return, the following colloquy took place between the trial judge and the jury foreman:

THE COURT: Mr. Pascual, as foreman, the Court would inquire of you if you think that if given more time, there is a reasonable probability that the jury could agree upon a verdict, it being the jury’s function to do so?
MR. PASCUAL: Your Honor, I don’t know if I can say that there will be reasonable probability, but I think I can speak for the entire jury that I believe we would like to spend some more time. We don’t feel, I don’t believe, that we’re at the point where we are at an impasse that cannot be overcome.

The jury then continued to deliberate until 10:26 p. m., at which time the jury was brought back, and, in response to an inquiry from the judge as to whether or not they would be able to reach a verdict, the foreman replied: “At this point, Your Honor, I don't believe so.” The trial court then proceeded to instruct the jury by using standard jury instruction 2.19 in effect at the time of the trial, which read as follows:

Ladies and gentlemen, it is your duty to agree upon a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride or opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply for the purpose of terminating a case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and that this case may be disposed of. [Now renumbered as 2.21.]

The jury resumed their deliberations and approximately thirty minutes later, shortly after 11:00 p. m., they returned a verdict of guilty.

At the conclusion of the sentencing phase of the trial, the jury recommended that the defendant receive a sentence of life imprisonment. The trial court ordered a presen-tence investigation. In his sentencing order, the judge stated that he considered the presentence investigation report as well as the facts heard during the trial, and found that sufficient aggravating circumstances existed to justify the death sentence. The trial judge found that the circumstances of the offense were especially heinous, atrocious, and cruel, and, secondly, found that the defendant was previously convicted of felonies involving the use or threat of violence to the person. The trial judge based the second finding upon convictions listed in the presentence investigation report, including two convictions discussed in a confidential section of the report. Finally, the trial court found that the other statutory categories of aggravating circumstances were inapplicable, and that there were no mitigating circumstances.

Pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), after notice of appeal was filed we directed the trial judge to disclose any information he may have used in sentencing that was not disclosed to the defendant. In his response, the trial judge advised this Court that neither party received copies of the confidential portion of the presentence investigation report, nor did they receive the personality inventory report that was attached to it. The trial judge did, in fact, use this information in imposing this death sentence.

Trial Phase

The appellant asserts as grounds for error in the trial phase that: (a) the evidence was insufficient to support the jury’s verdict; (b) the trial court erred in its instructions to the jury concerning their responsibilities, and in giving the approved standard jury instruction after an apparent deadlock; (c) the prosecutor’s summation was inflammatory and prejudicial; (d) the trial court improperly limited cross-examination of a prosecution witness; and (e) the trial court improperly denied appellant’s request for a jury view of the scene.

With reference to the contention that the evidence is insufficient, the appellant asks us to reject in totality the testimony of Dilisio. Dilisio led the authorities to the dump where the bodies were found two years after he observed them with the appellant. Both the jury and the trial judge had a superior vantage point to weigh the credibility of Dilisio’s testimony. We find the evidence in this record was sufficient to sustain this jury’s verdict.

The contention that the trial judge made improper comments during a colloquy with the jury foreman concerning the status of jury deliberations, and the assertion by the appellant that our standard jury instruction for a deadlocked jury is improper, are both without merit. The colloquy was clearly reasonable and proper, and we find that our standard jury instruction, presently standard 2.21, is fair, unbiased and has been specifically approved by this Court in State v. Bryan, 290 So.2d 482 (Fla.1974). In addition, such a charge has also been approved by the Fifth Circuit Court of Appeals. United States v. Thomas, 567 F.2d 638 (5th Cir. 1978); United States v. Solomon, 565 F.2d 364 (5th Cir. 1978); United States v. Bailey, 480 F.2d 518 (5th Cir. 1973).

The contention that the prosecutor’s comments were inflammatory and prejudicial, that the trial court improperly limited cross-examination, and that the trial court improperly denied a jury view, are clearly without merit and do not warrant discussion.

By Notice of Supplemental Authority, Spaziano raises the argument that the state may not under Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), force him to choose between waiving the statute of limitations which had run as to all lesser included noncapital offenses and having the jury instructed only as to first-degree murder. The Beck v. Alabama decision did not involve lesser included offenses for which the statute of limitations had run but instead concerned an express statutory prohibition on instructions for lesser included offenses when a defendant was charged with a capital offense. Whatever the implications of Beck v. Alabama may be, we do not find that it requires the jury to determine the guilt or innocence of lesser included offenses for which the defendant could not be convicted and adjudicated guilty.

Sentencing Phase

The trial judge considered a confidential portion of the presentence investigation report which contained information that the appellant had been a suspect in four homicides and three bombings, was a member of the “Outlaws” gang, had been convicted of rape and sentenced to the state prison, had been charged with forcible carnal knowledge, rape, and false imprisonment for another incident, but allegedly escaped prosecution because of harassment and threats towards the victim by gang members, and had been convicted of other nonviolent felony and misdemeanor offenses.

In Gardner v. Florida, decided after the trial and sentence in this cause, the United States Supreme Court held that a defendant in a death case is denied due process of law when the death sentence is imposed, even in part, on the basis of information that he had no opportunity to deny or explain. The Gardner decision prohibits the judge’s use of this confidential information in the presentence investigation report without first disclosing that information to Spaziano and providing an opportunity to present evidence in response. Under the standards set down in Gardner, we must find clear error in the use of the confidential portion of the presentence investigative report.

Section 921.141(5), Florida Statutes, limits the factors in aggravation which may be considered by the trial judge in imposing the death sentence. In considering a defendant’s prior criminal record, the trial judge is limited to only those offenses for which “the defendant was previously convicted.” Provence v. State, 337 So.2d 783 (Fla.1976). Further, these underlying convictions are also limited to “another capital felony or ... felony involving the use or threat of violence to the person.” § 921.141(5)(b), Fla.Stat. The prior felony offenses involving violence for which the appellant in this case was convicted are proper factors to be considered in aggravation. However, the convictions for nonviolent offenses and misdemeanors and charges for which there was no conviction must be excluded as aggravating factors.

In conclusion, we find the Gardner violation and the statutory limiting factors in aggravation require this cause to be remanded to the trial judge for resentencing.

We affirm the conviction and remand for resentencing by the trial judge in accordance with the views expressed in this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


author: LILES, WOODIE A., Associate Judge (Retired). LILES, WOODIE A. (Retired), Associate Judge.

text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant/Cross-Appellee, v. PENSACOLA HOME & SAVINGS ASSOCIATION, Appellee/Cross-Appellant.
    No. VV-271.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    On Rehearing and Clarification Feb. 13, 1981.
    L. Kathleen Horton, of Clark, Partington, Hart & Hart, Pensacola, for appellant/ cross-appellee.
    Charles L. Hoffman, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appel-lee/ cross-appellant.
   LILES, WOODIE A., Associate Judge (Retired).

South Carolina Insurance Company (Appellant) appeals from an amended summary judgment entered in a suit on a fire insurance policy awarding the Plaintiff, Pensacola Home & Savings Association (Appellee), the sum of $17,265.11 plus interest, attorney’s fees, and costs. Appellant contends that it was only liable to Appellee for the amount of $10,705.16. Appellee cross-appeals, asserting that it is entitled to a judgment for $21,000.00 plus interest, attorney’s fees and costs.

The material facts to this appeal are undisputed. Appellee held a mortgage on certain real property owned by G.F.G. Builders, Inc., which was not a party to this action. The mortgage required G.F.G. to obtain a fire insurance policy naming Ap-pellee as the loss-payable mortgagee. Ap-pellee’s interest in the policy was as follows:

Loss, if any on the property subject to this clause as specified on the reverse side, shall be payable to the mortgagee (or trustee) as provided herein, as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, or by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purpose more hazardous than are permitted by this policy: Provided That in any case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.

The face amount of the insurance policy was $21,000.00. Appellee filed suit to foreclose upon its mortgage on December 16, 1977. On December 20, 1977, a fire caused $21,450.00 damage to the insured property. The mortgage debt at the time of the fire was $22,765.11. A final judgment of foreclosure was entered, finding the amount due under the note and mortgage to be $24,705.16. At a judicial sale, Appellee purchased certificate of title on the property for $14,000.00. Appellee then filed suit seeking the full $21,000.00 insurance proceeds. Appellant filed its answer and affirmative defense, asserting that Appellee was entitled to recover only $10,705.16 (the amount due under the note and mortgage less the amount realized at the foreclosure sale). Appellee replied and asserted that its $14,-000.00 bid was the result of an error and was greatly in excess of the value of the property. By affidavit of its assistant secretary/assistant treasurer, Appellee also asserted that the real value of the property at the time of the foreclosure sale was $5,500.00. Both parties moved for summary judgment in the above-noted amounts. The trial court entered a final judgment finding for Appellee in the amount of $17,-265.11 (the mortgage balance on the date of the fire less the appraised value of the property after the fire) plus costs and attorney’s fees. We reverse.

Where a fire loss occurs and a loss-payee is thus vested with rights under the insurance policy, subsequent partial or full extinguishment of the debt giving rise to the insurable interest will reduce the loss-payee’s interest in the proceeds to the extent that the debt has been satisfied. Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir. 1962); Lutheran Brotherhood v. Hooten, 237 So.2d 23 (Fla.2nd DCA 1970). The underlying policy behind this result is best expressed as follows:

“The creditor’s interest in the insurance proceeds is recognized as security for the payment of the debt. The insurance is an alternative source of payment and once the debt is paid by some other means any right to the insurance is thereby extinguished. Equity requires that subsequent events such as payment of the underlying debt not be ignored when the court distributes the insurance proceeds.” Calvert Fire Insurance Co. v. Environs Development Corp., 601 F.2d 851, 856 (5th Cir. 1979).

Therefore, we conclude that Appel-lee’s interest in the insurance proceeds has been reduced to the extent of its bid on the foreclosed property. See Mortgage Securities, Inc. v. South Carolina Insurance Co., No. C 78-12805 A (N.D.Ga. September 23, 1980). We also note that Appellee is bound by its bid of $14,000.00. See Calvert Fire Insurance Co., supra; Nationwide Financial Corp. v. Banks, 147 Ga.App. 73, 248 S.E.2d 54 (1978); Whitestone Savings & Loan Association v. Allstate Insurance Company, 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694 (1971). Accordingly, we reverse the decision of the trial court and amend the judgment to reflect an award of $10,705.16.

REVERSED.

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

ON MOTION FOR CLARIFICATION AND REHEARING

LILES, WOODIE A. (Retired), Associate Judge.

Appellee requests a rehearing and clarification of the Court’s original opinion which would remand the case to the trial court for an award of interest, costs, and attorney’s fees incurred at the trial level.

Appellee, as the loss-payable mortgagee under the insurance policy, is deemed “an insured” pursuant to Section 627.428(1), Florida Statutes, and thus is entitled to attorney’s fees. Vermont Mutual Insurance Company v. Bolding, 381 So.2d 320 (Fla. 5th DCA 1980). Further, Appellee is still entitled to these fees since the $10,-705.16 awarded by this Court exceeds the liability recognized by Appellant in the trial court. Indeed, Appellant asserted in its answer that only $8,765.11 was owed. This position was reasserted in its motion for summary judgment. It was not until the day of the hearing on the motions for summary judgment that Appellant conceded that $10,705.16 plus interest was owed. This delay in offering to pay the proper amount due under the insurance policy amounts to a wrongful withholding and justifies an award of attorney’s fees. See Employers’ Liability Assurance Corporation v. Royals Farm Supply, 186 So.2d 317, 321 (Fla. 2nd DCA 1966).

Accordingly, we remand to the trial court for assessment of interest, costs, and attorney’s fees based upon the reduced amount awarded by this Court.

The Motion for Rehearing and Clarification is granted, and the cause is remanded for further proceedings consistent with this opinion.

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


author: ORFINGER, Judge.

text:
    VOLUSIA FERN CO., INC., a Florida Corporation, Appellant, v. Mac Arnold COX et ux., Appellees.
    No. 79-24.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Rehearing Denied Feb. 19, 1981.
    Frank D. Newman of Newman & Peterson, DeLand, for appellant.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, P. A. and Richard W. Taylor, DeLand, for appel-lees.
   ORFINGER, Judge.

Appellant contends that the trial court erred in dismissing a betterment petition as filed too late. We agree and reverse.

Appellees were plaintiffs in an action for ejectment and damages. Following entry of judgment in their favor, appellees filed a timely motion for new trial on damages claiming that they were entitled to more than the nominal damages awarded by the jury.

The trial court granted the motion and entered an order awarding appellee a new trial on the issue of damages. On the same day, it entered an amended final judgment which, like the original final judgment, recited that plaintiffs were the owners of and entitled to possession of the described lands, and reserved jurisdiction to award damages and costs to be recovered by appellees. Within 60 days of the entry of the amended final judgment, but more than 60 days from the entry of the original final judgment, appellant filed its petition for betterment, which petition was dismissed upon appel-lees’ motion as being filed too late. This appeal followed.

Appellant points to Rule 9.020(g), Florida Rules of Appellate Procedure and says that this clearly indicates that when appel-lees filed the motion for new trial the “rendition” of the judgment was delayed until the motion was ruled upon, so that the petition for betterment filed within sixty days of the entry of the amended final judgment was timely. Appellees contend that Rule 9.020(g) applies only to appellate proceedings, and does not control the statutory ejectment proceeding, relying on cases such as McNitt v. Osborne, 371 So.2d 696 (Fla. 3d DCA 1979), and cases cited therein.

We have no quarrel with McNitt, but it is distinguishable from this case. In McNitt, the issue was whether statutory interest began to run from the date the judgment was signed and filed, or from the date on which post-trial motions were disposed of. Judge Schwartz, speaking for the court, observed that:

There is nothing in the use of the word “rendered” in either the present or the prior version of Section 55.03, Florida Statutes (1977) which indicates in any way an intention by the legislature to incorporate the definition of “rendition” found in Florida Rules of Appellate Procedure 9.020(g) with the effect of postponing the accrual of the right to interest.

The principle that interest on a judgment runs from the time of its entry was found to be so well recognized as to be universally assumed without discussion.

But the reasons for the holding in McNitt do not appear here. The statute in question clearly contemplates that an appellate proceeding may intervene, and if it does, the defendant in ejectment has an additional 20 days after filing of the mandate within which to file the petition for betterment. If we follow appellees’ position to its logical conclusion, if a motion for new trial had been filed which could not be heard or disposed of by the trial court within sixty days after the entry of the original judgment, and had an appeal then followed, the betterment petition would be due, not twenty days after the filing of the mandate affirming the judgment as the statute clearly dictates, but sixty days after the entry of the original judgment. Clearly, this is not the statutory intention. Obviously the term “rendered” as used in the betterment statute does contemplate an appellate proceeding and the definition of the term from the appellate rules should apply.

Where there has been filed in the lower tribunal an authorized and timely motion for a new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, in arrest of judgment or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.

This interpretation gives effect to the legislative intent apparent from the act as a whole to give to a defendant in ejectment a reasonable and practical opportunity to present and have determined a betterment petition. See Bailey v. Bailey, 114 So.2d 804 (Fla. 1st DCA 1959). The petition here was timely.

REVERSED and REMANDED for further proceedings consistent herewith.

DAUKSCH, C. J., and EVANS, VERNON W., Associate Judge, concur.

      . Section 66.041, Florida Statutes (1977), provides:
      If a judgment of eviction is rendered against defendant, within sixty days thereafter, or if he has appealed, within twenty days after filing the mandate affirming the judgment, he may file in the court in which the judgment was rendered a petition setting forth that:
      (1) Defendant had been in possession and that he or those under whom he validly derived had permanently improved the value of the property in controversy before commencement of the action in which judgment was rendered.
      (2) Defendant or those under whom he validly derives held the property at the time of such improvement under an apparently good, legal or equitable title derived from the English, Spanish or United States governments or this state; or under a legal or equitable title plain and connected on the records of a public office or public offices; or under purchase at a regular sale made by an executor, administrator, guardian or other person by order of court, and
      (3)When defendant made the improvements or purchased the property improved, he believed the title which he held or purchased to the land thus improved to be a good and valid title. The petition shall demand that the value of the improvements be assessed and compensation awarded to him therefor.

      . Rule 9.020(g), Florida Rules of Appellate Procedure (1977) states:

      . See Casto v. Casto, 388 So.2d 1 (Fla. 4th DCA 1980) where the court held that the term “entry of judgment” as used in Fla.R.C.P. 1.530(b) was synonymous with the term “rendition” as used in Fla.R.App.P. 9.020(g).


author: JOANOS, Judge.

text:
    The LATT MAXCY CORPORATION and Underwriters Adjusting Company, Appellants, v. C. L. MANN, Appellee.
    No. TT-65.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.

      Jeffrey A. Cramer of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellants.
    Bruce McEwan, Orlando, for appellee.
   JOANOS, Judge.

Latt Maxcy Corporation and its carrier, Underwriters Adjusting Company, appeal from a Workers’ Compensation Order which awarded the claimant’s attorney $12,500 in attorney’s fees based upon the achievement of permanent total disability benefits for the claimant. Latt Maxcy concedes that claimant’s attorney was successful in securing an increased compensation rate which was not timely accepted and that claimant is entitled to an award of a fee based upon that increased benefit. See Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979). As to the portion of the attorney’s fee award which is based upon the increase in degree of permanency, however, Latt Maxcy argues no award should have been made since it complied with the provisions of Section 440.34(1), Florida Statutes (1977) by accepting the claim for permanent total disability benefits within 21 days of receiving “notice” of the claim. We agree and reverse that part of the order from which the employer appealed.

The central question in this case is, when did “notice” of a claim under Section 440.-34(1) occur? The facts are somewhat unusual and complicated, but it is necessary to review them in order to evaluate when and why notice became sufficient in the statutory sense.

On November 22, 1977, claimant, a ranch foreman for Latt Maxcy, fell off of a horse and injured his right hip and shoulder. While claimant was in the hospital, his doctor discovered an aortic aneurysm which required an operation. Claimant did not return to work until April 17, 1978.

Dr. Ames, who had been treating claimant since the accident, found that claimant reached maximum medical improvement from his shoulder and hip injuries on November 6, 1978 and that claimant had a permanent physical impairment of 20% of the body as a whole. The employer did not contest this finding and began making compensation payments based upon the 20% rating. Prior to November 6th, the employer had paid the appropriate temporary disability payments and medical expenses.

On December 7, 1978, claimant, through his attorney, filed a claim asking for compensation above the 20% rating given by Dr. Ames. This claim sought to causally relate the aneurysm to the accident and requested reimbursement for medical expenses connected with the aneurysm. The employer contested this claim, but on June 27, 1979, claimant agreed to a voluntary dismissal “since some of the issues were not mature at that time.” Claimant was still working as ranch foreman for Latt Maxcy both when the claim was filed and when it was dismissed. According to claimant’s deposition taken in February of 1979, his post-accident job position and responsibilities were the same as pre-accident. Claimant remained at that job until sometime in July of 1979.

An amended claim which made no attempt to connect claimant’s aneurysm to the accident was filed on August 20, 1979. The amended claim alleged that the issues were now “mature” and sought permanent total disability benefits, or, in any event, benefits in excess of the 20% rating. In addition, the claimant requested that treatment be authorized by another physician and that he be interviewed and tested by rehabilitation specialists. Three days after the claim was filed, the employer authorized treatment by Dr. Stanford, as well as an evaluation by a rehabilitation counselor and a rehabilitation group.

On August 27, 1979 the employer and claimant filed a pre-trial stipulation in which the employer listed several defenses to the claim. The employer also sought to depose the claimant, but the deposition had to be delayed until October 17th because claimant’s attorney was on vacation from September 5th to October 3rd. After Mr. MeEwan returned, the employer asked to have claimant examined by a surgeon at the employer’s expense in order to determine whether claimant’s complications arising after the aneurysm operation were in any way related to the accident. Mr. Mc-Ewan resisted the attempt to examine claimant, deeming it unnecessary.

In the meantime, Dr. Stanford examined claimant on September 5th and 13th, and on October 2nd and 16th. These examinations consisted primarily of conservative treatment and diagnostic work. The doctor scheduled the claimant for an EMG to be taken on October 23rd; after reviewing the EMG findings, on the next day Dr. Stanford prepared a report giving claimant a 35% disability rating. Several days later, the employer also received a rehabilitation evaluation which stated that it would be difficult for claimant to find employment.

On November 1, 1979, the date originally scheduled for the hearing, the employer accepted claimant as permanently and totally disabled. Despite the employer’s argument that the claim was timely accepted, the deputy commissioner awarded claimant’s attorney $12,500 in fees. The employer contends that its first “notice of the claim” was either when the report of Dr. Stanford giving claimant a 35% disability rating was received or when claimant’s deposition was taken on October 17, 1979. The claimant, on the other hand, asserts that the employer had notice of claimant’s increased disability when claimant’s employment was terminated in July of 1979 or when either the first claim or the amended claim was filed. In addition, the claimant argues that since the employer asserted defenses to the claim in the pre-trial stipulation, it is precluded from relying on the 21 day provision of Section 440.34(1).

On the date of the claimant’s injury, Section 440.34(1) provided that “if the employer or carrier ... shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation ...” then the claimant is allowed an attorney’s fee for services provided in the successful prosecution of the claim. Initially, we note that contrary to the claimant’s argument, the statute does not prohibit the employer from asserting defenses within 21 days after receiving notice of the claim. Cannon & Sons v. Buchsbaum, IRC Order 2-3849 (1979). The provision of the statute dealing with unsuccessful resistance of payments was not intended to apply to the 21 day period. See, e. g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962).

The claimant’s argument that the initial claim operated to start the running of the 21 day period is rejected for two reasons. First, claimant’s attorney admitted that the claim was premature when he voluntarily dismissed the claim. If the issues were not “ripe” when the claim was filed, then the employer could not be expected to make an informed decision on whether or not to accept the claim. Second, unlike the amended claim, the claim filed in December of 1978 sought to make the employer responsible for all medical costs and disabilities resulting from the claimant’s aneurysm. Even claimant’s attorney later admitted that he could not prove a connection between the accident and the aneurysm: “When I get 4 letters saying it’s [the aneurysm] not related I know I’m beat.” Section 440.34(1) was enacted in order to expedite payments of benefits by allowing for attorney’s fees when an employer unjustifiably resists payment of compensation. Schollenberger v. City of Miami, 241 So.2d 385 (Fla.1970). Since reluctance by the employer to accept the first claim was justifiable, the employer should not be penalized for its resistance to the claim.

Having resolved that the first claim did not trigger the 21 day provision of Section 440.34(1), we must now determine which of the other dates suggested by the parties operated as notice of a claim. Ordinarily, the 21 day period begins to run when the employer receives notice that a claim (or in this case, the amended claim) has been filed. For example, in Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979), this Court restated the proposition that even if an employer’s refusal to pay compensation forces the employee to file a claim, Section 440.34(1) still allows the employer to avoid payment of attorney’s fees by accepting the claim within 21 days of its filing. Carillon Hotel v. Rodriquez, 124 So.2d 3 (Fla.1960).

The mere filing of a claim will not operate as notice, however, if the claim itself does not contain sufficient information to enable the employer to initiate an investigation. Gulfstar, Inc. v. Gordon, IRC Order 2-3267 (1977); Central Heating & Air Conditioning v. Harrison, IRC Order 2-3242 (1977). This result follows logically from the recognition that during the 21 day period provided by the statute, the employer has both the right and the duty to make a reasonable investigation regarding the validity of the claim. Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970); Thompson v. W. T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964); Smith v. Dixie Packers, Inc., 384 So.2d 709, 1980 FLW 1067 (Fla. 1st DCA 1980). Under a reasonable interpretation of Section 440.34(1), the right to investigate must be read in conjunction with the statutory requirement that the employer receive “notice” of a claim. Certainly the legislature intended to give employers a 21 day decision-making period which could be used constructively to arrive at an informed decision. In order for the employer’s right to investigate to have any substance, the employer must know enough about the claim to be able to independently evaluate its validity. Thus, “notice” of a claim for statutory purposes occurs when the employer first receives sufficient information on which it may begin an investigation.

After receiving the amended claim advising of a possible increase in claimant’s disability, Latt Maxcy made every attempt to exercise its right to investigate. The employer responded to the claim almost immediately by authorizing and scheduling appointments for claimant with another physician and with rehabilitation counselors. In addition, Latt Maxcy asked to have claimant examined at the company’s expense by a specialist. More importantly, Latt Maxcy sought to depose the claimant but was prevented from taking the deposition within 21 days of the filing of the amended claim because the claimant’s attorney left town on an extended vacation. Without a recent deposition of the claimant, the employer could not even be certain of the source of the claimant’s physical discomfort. Such information was particularly important in this case because the claimant had undergone major surgery for a non-work related condition (the aneurysm) after the date of the accident. The employer’s right to investigate would have been meaningless in this case if it were not given at least an opportunity to determine whether any increase in the claimant’s disability was related to complications arising from the aneurysm operation rather than the accident. A realistic investigation could not proceed without more specific information on the claimant’s physical condition, and that information was not received, through no fault of the employer, until October 17, 1979, which was well within 21 days of the employer’s acceptance of claimant as permanently totally disabled. Latt Maxcy should not be penalized for its inability to gain that information earlier since the delay was caused solely by the claimant’s attorney.

The Order appealed from is reversed and the case is remanded with instructions to award claimant’s attorney a fee based upon the attainment of an increased compensation rate and not upon the securing of permanent total disability benefits.

SHAW and WENTWORTH, JJ., concur.

      . Because of Latt Maxcy’s numerous efforts to investigate, this case is distinguished from the cases which have held an employer to be liable for attorney’s fees because it abdicated the right to investigate and forced the burden of proving liability on the claimant. See Colvin v. State of Florida, D.O.T., 311 So.2d 366 (Fla.1975); Davis v. Edwin M. Green, Inc., supra; Smith v. Dixie Packers, Inc., supra; Osteen v. Georgia-Pacific Corp., IRC Order 2-3383 (1978).


author: PER CURIAM.

text:
    MARCI ANN SPORTSWEAR and U. S. Fidelity & Guaranty Company, Appellants, v. Jorge BUSQUET, Appellee.
    No. VV-165.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Rehearing Denied March 3, 1981.

      Frank E. Maloney, Jr., Fort Lauderdale, for appellants.
    David H. Levine and Edward P. Busch, Miami, for appellee.
   PER CURIAM.

The employer/carrier appeal a worker’s compensation order in which the Deputy Commissioner found that as a result of the claimant’s compensable accident, he developed and was suffering from a disabling anxiety neurosis requiring further psychotherapy. Appellants contend that there was no compensable accident or trauma because claimant’s paroxysmal supraventricu-lar tachycardia was precipitated by an altercation the claimant had with his employer, and that his claim is precluded by the provisions of Section 440.02(18), Florida Statutes (1979), which excludes a “mental or nervous injury due to fright or excitement only ...” See City Ice and Fuel Division v. Smith, 56 So.2d 329 (Fla.1952), and Superior Millwork v. Gable, 89 So.2d 794 (Fla.1976). We affirm the ruling of the Deputy Commissioner.

The statute and the cases cited do not control where, as here, the claimant’s accident resulted from the trauma of heavy lifting superimposed upon a heightened emotional state. Appellants’ contention that there was no “compensable accident” is therefore without merit. We note further that in an order entered in this proceeding on December 29, 1978 the Judge of Industrial Claims specifically found the claim to be compensable, based upon claimant’s emotional reaction combined with the strenuous effort exerted in doing an unusually strenuous task, from which he developed paroxysmal supraventricular tachycardia. That order was not appealed or contested, and has therefore become final.

As for the present order, finding an anxiety neurosis causally related to the accident, the Deputy Commissioner specifically accepted the opinion of Dr. Cava over that of the other physicians, and this court is not permitted to disturb that ruling on appeal.

The claimant’s cross-appeal relates to the Deputy Commissioner’s failure to rule upon the claimant’s request for temporary disability compensation. We find no basis for the Deputy Commissioner’s determination that since the claimant was not receiving medical treatment during the claimed period of temporary disability, a ruling upon the award of temporary benefits could be reserved or postponed. Cross-appellants’ claim for temporary benefits was ripe for adjudication, and that portion of the order reserving ruling on the temporary award is reversed. See Westberry v. Copeland Sausage Company, et al, 389 So.2d 1214 (Fla. 1st DCA 1980), and cases therein cited.

Affirmed in part, reversed in part, and remanded for entry of an order awarding temporary disability benefits.

LARRY G. SMITH, J., LILES, WOODIE A., Associate Judge (Ret.), and PEARSON, TILLMAN, Associate Judge (Ret.), concur.


text:
    BOARD OF REGENTS, State of Florida, Acting for and on Behalf of the UNIVERSITY OF FLORIDA, Appellant, v. Schuyler HARDIN and Transamerica Insurance Company, Appellee.
    No. VV-477.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Thomas S. Biggs, Jr., Joseph B. Cramer, Robert J. Denson, Gainesville, for appellant.
    William N. DeCarlis, Bates & DeCarlis, Gainesville, for appellee.
   JOANOS, Judge.

This is an interlocutory appeal from an order granting Defendant/Appellee Hardin’s motions for default on a counterclaim and dismissal with prejudice of the complaint.

The Board of Regents, on behalf of the University of Florida, and Santa Fe Community College filed a complaint on August 7,1979, against Schuyler Hardin seeking an accounting and against Transamerica Insurance Company seeking recovery on a bond issued by that company. Pursuant to an oral agreement, the time in which an answer was to be filed was extended to September 15, 1979, although the answer was not filed until October 3, 1979. Along with the answer, Hardin filed a counterclaim and motions to dismiss, citing certain inadequacies in the contents of the complaint.

In a written stipulation of October 31, 1979, the parties agreed that “the Defendant Hardin’s Motions to Dismiss are well taken” and “that if hearing were held thereon before the Judge assigned to this case Plaintiffs would acknowledge that said motions were well-founded.” Finally it was agreed “that for purposes of this action, Defendant Hardin’s Motions to Dismiss will be treated as if the same had been granted by the Court and Plaintiffs shall have twenty (20) days from the date of this Stipulation to plead as they may be advised.”

BOR did not replead within twenty days of the stipulation. The attorney for Defendant Hardin requested by letter and telephone that BOR do so, but to no avail. On February 29, 1980, Defendants moved for default on their counterclaim and for dismissal with prejudice of Plaintiffs’ original complaint. On March 18, 1980, after a hearing had been scheduled on Defendants’ Motions, Plaintiffs filed an amended complaint which Defendant Hardin moved to dismiss as untimely.

The hearing on Defendants’ motions for default on the counterclaim and dismissal with prejudice of the complaint was held on April 29, 1980. On that date, Plaintiffs filed an answer to the counterclaim. On May 12, 1980, the Court filed its order, dated May 8,1980, granting the motions for default on the counterclaim and dismissal with prejudice of the complaint.

Two issues were raised on appeal: Whether the trial court erred in entering a default against Plaintiffs after their response to the counterclaim was filed, and whether the trial court abused its discretion in dismissing the complaint with prejudice.

As to the first issue, we reverse. The language of Rule 1.500(c), Florida Rules of Civil Procedure, is plain and has been read literally by the courts. See: Freedman v. Freedman, 235 So.2d 544 (Fla. 3rd DCA 1970), cert. denied, 241 So.2d 859 (Fla.1970), and Lake Towers, Inc. v. Axelrod, 216 So.2d 86 (Fla. 4th DCA 1968). The Rule states that a party may plead or otherwise defend at any time before default is entered. An order of default has not been entered until it is actually filed with the clerk. Chester, Blackburn, and Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3rd DCA 1980).

Defendants/Appellees argue that the literal reading which has been given the Rule renders it inconsistent with Rules 1.140 and 1.090, Florida Rules of Civil Procedure, frustrating the principle that rules of civil procedure dealing with the same subject matter should be construed together and in light of each other. Dibble v. Dibble, 377 So.2d 1001 (Fla. 3rd DCA 1979). Rule 1.140(a) provides that answers to counterclaims shall be filed within twenty days after service of the counterclaim. Here the answer was filed more than 5 months after the written stipulation was entered. Rule 1.090(b) provides that upon motion and notice, after the expiration of the time period within which an act was required to be done under the rules, the court may enlarge the time period if the failure to comply was due to excusable neglect. In the instant case, no enlargement of time was sought. Ap-pellee points out that a counter-defendant will always have filed some paper in the action, thus the provisions of Rule 1.500(a) for automatic entry of default by the clerk will not apply, and the counter-defendant will always receive notice of the default hearing. Fla.R.Civ.P. 1.500(b). Therefore, although a counter-defendant seeks no enlargement of time from the court within which to answer the counterclaim, a counter-defendant will not be limited, to twenty days within which to file an answer, but will have additional time up until the entry of an order following a default hearing. The court will have taken time from its calendar to hold the default hearing for naught if it fails to file its signed order with the clerk before the counter-defendant files its answer.

Appellee makes good arguments in terms of judicial economy and consistency within the Rules of Civil Procedure. While we do not in anyway condone the dilatory behavior of appellant’s counsel in this proceeding, nevertheless, the meaning of the applicable sentence in Rule 1.500(c) is plain, and the literal interpretation given it in the cases cited above is unavoidable. No exceptions exist to cover the unfortunate situation presented in this case.

As to the second issue, we also reverse. While it was within the discretion of the trial court to dismiss the complaint, it was not within the discretion of the court to dismiss the complaint with prejudice. The stipulation of the parties provided that the motions to dismiss would be treated as if granted by the court, but did not provide with regard to the time period within which to replead that the stipulation would have the same effect as an order of the court. Therefore, the violation of the stipulation by failing to replead within twenty days should not have been treated as failure to comply with an order of the court. This being the first dismissal of the complaint, voluntary or involuntary, it should not have been dismissed with prejudice.

The order of the court granting Hardin’s motion for default on the counterclaim is accordingly reversed. The order is also reversed insofar as it dismissed the complaint with prejudice, and the cause is remanded with directions to allow appellant an opportunity to file an amended complaint, and for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

WENTWORTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Rodolfo Osvaldo RICANO, Appellee.
    No. 80-618.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied March 4, 1981.
    Janet Reno, State Atty. and Theda R. James, Asst. State Atty., for appellant.
    Robert F. Garcia-Esquerro and Miguel Del Aguila, Samek & Besser and Jeffrey W. Samek, Miami, for appellee.
    Before SCHWARTZ, NESBITT and PEARSON, JJ.
   NESBITT, Judge.

The state appeals from an order granting the defendant’s motion to suppress physical evidence which formed the basis for an information charging him with: (1) trafficking in cocaine; and (2) unlawful possession of cocaine with intent to sell. Finding error in the challenged order, we reverse.

Detectives McGavock and Facchiano of the Narcotics Detail of the Public Safety Department were assigned to the Miami International Airport. At approximately 8:00 a. m. on August 10, 1979, McGavock observed the defendant arrive at the airport in an automobile driven by a companion. After the car was parked, the two exited the car and went to its trunk area. After apparently making some counter-surveillance, the driver opened the trunk and withdrew two pieces of luggage which he handed to the defendant. The defendant subsequently checked the larger of the two pieces of luggage with the terminal porter, received a claim stub, and then entered the lobby of the main concourse. Detective McGavock observed this transaction and made a written notation of the description of the checked bag as well as its claim check stub number. McGavock, continuing surveillance, observed the defendant approach the National Airlines ticket counter and then move toward the departure concourse. The defendant apparently became aware of the police surveillance and attempted evasive action. This caused the detectives to approach him. Detective Fac-chiano asked the defendant for identification and the defendant promptly produced his airline ticket and an Alaska driver’s license. After a brief examination, both items were promptly returned to him. Fac-chiano then advised the defendant that he and McGavock were narcotics officers assigned to deter the smuggling of narcotics via commercial airlines. McGavock asked the defendant if he had any other luggage. The defendant held up a tote bag and replied, “No, this is it.” He then opened the tote bag and invited the officers to inspect it saying: “Do you want to look inside? You can look.” McGavock then took Fac-chiano aside and told him that he was going downstairs to the baggage area where defendant’s other piece of baggage, which he observed being checked at curbside, would be. McGavock departed. Facchiano, in the company of Sgt. Pearson, who had later joined them, looked through the defendant’s tote bag. The cursory examination revealed nothing in the nature of contraband. Facchiano again asked the defendant if he had any other baggage and he once again replied that he did not. The defendant was then permitted to proceed on his way. Fac-chiano followed the defendant until he actually stepped onto the escalator to board his flight.

In the meantime, Detective McGavock had contacted Detective D’Azevedo, who was the handler of the narcotics dog, Ringo. McGavock went to the airport baggage check area where the defendant’s luggage was moved from the cart to the airport floor and arranged a canine baggage sniff lineup. When presented to the baggage lineup, Ringo alerted on the bag which corresponded both to the description and claim check number McGavock had noted prior to any contact with the defendant. Facchiano and McGavock then went to the concourse where they found the defendant waiting in line for the departure of his flight. The defendant was arrested and returned to the baggage loading area. The officers presented the bag, identified by Ringo, to the defendant whereupon the defendant denied ownership. [At the suppression hearing, McGavock not only identified the bag by description but also by the claim check stub number as that which he saw the defendant check.] The officers then obtained a search warrant for the piece of luggage which led to the disclosure of the cocaine in the bag.

In suppressing physical evidence revealed by the search warrant, the trial court improvidently interdicted police action by erroneously determining that the defendant had been stopped or seized. The situation presented in this case does not require this court to determine whether the encounter between the defendant and the detectives constituted a “stop” or a “mere contact.” Prior to the defendant’s encounter, the detectives could identify the defendant, his luggage, the flight he was taking, and where his luggage could be located. The encounter with the defendant provided the detectives with no information which was not previously known to them. Viewing the airline ticket and the driver’s license only served to confirm what they already knew. Where the facts obtained merely act as a confirmation of previous knowledge, there is no need for suppression. United States v. Vicknair, 610 F.2d 372 (5th Cir.), cert. denied,-U.S.-, 101 S.Ct. 83, 66 L.Ed.2d 25 (1980); United States v. Pike, 523 F.2d 734 (5th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1975). As stated in this case, police officers were armed with the description of the defendant’s luggage, its claim check stub number, and the airline on which it had been checked and where it might be located. With that information legally obtained, the detectives were plainly authorized by our decision in State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980) to move the defendant’s baggage from a cart to the airport floor and present it to the trained narcotics dog for his inspection. State v. Goodley, supra, controls that aspect of the decision at bar and no further elaboration of the law expressed therein is necessary. See also, Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980).

For the foregoing reasons, the order granting the defendant’s motion to suppress is reversed and the cause remanded for further proceedings.


author: DANIEL S. PEARSON, Judge. HUBBART, Chief Judge

text:
    Clifford Emanuel JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-682.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied March 4, 1981.
    Komorowski, Casuso & McHale, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

James, tried on an information charging him with aggravated assault, was convicted of the lesser included offense of assault and sentenced to sixty days in jail. He contends that the trial court erred by failing to instruct the jury, as James requested, on the minimum and maximum penalties for the charged offense, as well as lesser-included offenses, here improper exhibition of a firearm and assault.

Florida Rule of Criminal Procedure 3.390(a) provides:

“(a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.” (emphasis supplied).

Where a penalty instruction on the offense charged is requested, the rule makes such instruction mandatory. Tascano v. State, 393 So.2d 540 (Fla.1980). However, neither the rule nor Tascano requires that a jury be instructed on the penalties for lesser-included offenses. Under pre-Tascano cases holding Rule 3.390(a) mandatory, the trial court was obliged to instruct only on penalties for the offense charged, not on the penalties for any lesser-included offenses. Mitchell v. State, 304 So.2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974). Thus, the defendant was not entitled to have the jury instructed on the penalties for improper exhibition of a firearm and assault.

The remaining issue before us is whether the trial court’s failure to instruct on the penalties for the offense charged, that is, aggravated assault, per se error under Tascano, is harmless in light of the jury’s verdict on the lesser-included offense of assault. We conclude that the failure to instruct on the penalties for the offense charged is harmless where, as here, the defendant is convicted of the lowest lesser-included offense.

Affirmed.

HUBBART, Chief Judge

(concurring).

I concur in the court’s affirmance herein but would not reach the merits of the penalty instruction point urged by the appellant because he failed, in my view, to preserve the point for appellate review, and, accordingly, I would affirm on that basis alone. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), as adopted and followed in Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1980); Atkinson v. State, 378 So.2d 324 (Fla. 3d DCA 1980); White v. State, 324 So.2d 115 (Fla. 3d DCA), cert. dismissed, 339 So.2d 1173 (Fla.1976); Fla.R.Crim.P. 3.390(d); see Tascano v. State, 393 So.2d 540 (Fla.1980).

      . However, if the trial court, in the exercise of its discretion, does instruct on penalties for lesser-included offenses, it is not error. Pinkney v. State, 241 So.2d 380 (Fla.1970).

      . The State contends that Tascano should not apply here since James was tried before Tasca-no was decided. Since, pre-Tascano, the law in this district was that the penalty instruction was mandatory, see, e. g., Mitchell v. State, supra, we need not address the retroactivity of Tascano. We note, however, that the decision in Tascano is expressly made retroactive to cases tried before Tascano in which the defendant preserved the point on appeal.

      .James was convicted of the lowest possible offense, assault, a second-degree misdemeanor. § 784.011, Fla.Stat. (1979). Improper exhibition of a firearm is a misdemeanor of the first degree. § 790.10, Fla.Stat. (1979). We need not decide the harmlessness vel non of failing to instruct on the penalty for the crime charged where the defendant is convicted of the highest of the lesser-included offenses.


text:
    Isabel RODRIGUEZ, a/k/a “Iris”, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1351.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied March 4, 1981.
    John H. Duhig, Maimi, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Oliva v. State, 354 So.2d 1264 (Fla. 3d DCA), cert. denied, 359 So.2d 1217 (Fla.1978); State ex rel. Canup v. Langston, 341 So.2d 1069, 1070-71 (Fla. 2d DCA 1977); Schulkin v. State, 287 So.2d 137 (Fla. 3d DCA 1973); Fla.R.Crim.P. 3.191(a)(2), (f)(ii).


text:
    Juan Carlos PELL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2278.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied March 4, 1981.
    Louis Winter, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. The entitlement to discharge for violation of the speedy trial rule, Florida Rule of Criminal Procedure 3.191, is a matter which could have been raised on direct appeal and is not the proper subject for collateral attack. Morrison v. State, 283 So.2d 137 (Fla. 2d DCA 1973); see also, Adams v. State, 380 So.2d 423 (Fla.1980); Durcan v. State, 383 So.2d 248 (Fla. 3d DCA 1980); Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975); Phillips v. State, 313 So.2d 428 (Fla. 3d DCA 1975).

Affirmed.


text:
    Victor POSNER, Appellant, v. Richard S. FLINK, Appellee.
    No. 80-471.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 4, 1981.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Appellant challenges the award to appel-lee of prejudgment interest, at a rate of ten percent, and the award of certain costs. We affirm the propriety of an award of prejudgment interest, but reverse on the rate awarded, and remand for recomputation of the proper award. Additionally, we reverse the cost award, and remand for evidentiary hearing.

In actions ex contractu, prejudgment interest is appropriately added to un-liquidated damages where the trier of fact chooses to assess it. Cases cited in Plantation Key Developers, Inc. v. Colonial Mortgage Co. of Indiana, 589 F.2d 164, 170-71 (5th Cir. 1979); contra, McCoy v. Rudd, 367 So.2d 1080 (Fla. 1st DCA), appeal dismissed, 370 So.2d 461 (Fla.1979); Parker’s Mechanical Contractors, Inc. v. East Point Water & Sewer District, 367 So.2d 665 (Fla. 1st DCA), cert. denied, 378 So.2d 347 (Fla.1979).

If assessed, a rate of six percent is statutorily mandated. Chelsea Title & Guaranty Co. v. Turner, 389 So.2d 691 (Fla. 4th DCA 1980); § 687.01, Fla.Stat. (1979).

The court below awarded to appel-lees costs for professional fees submitted by his accountant, basing its post-judgment award solely on review of the record, and observation of the accountant’s testimony and other presentation of evidence on the substantive issues made during trial. The failure to conduct an evidentiary hearing to determine reasonable expert witness fees constituted an abrogation of the court’s statutory duty. See, § 92.231(2), Fla.Stat. (1979).

In all litigation involving professional fees proof is required of the nature of, and the necessity for, the services rendered, and the reasonableness of the charge made therefor.
* * * * * *
The reasonableness of the... fee is not the subject of judicial notice, neither is it to be left to local custom, conjecture or guesswork. Each award must be made on its own merits and should be justified by the circumstances in each particular case.

Lyle v. Lyle, 167 So.2d 256, 257 (Fla. 2d DCA), cert. denied, 172 So.2d 601 (Fla.1964); See Trustees of Cameron-Brown v. Tavormina, 385 So.2d 728, 730 (Fla. 3d DCA 1980) (quantum meruit, and not the bill, is the standard by which reasonability is determined in fee awards). (Although both these cases deal with attorneys’ fee awards, we consider their holdings to be illuminating to our analysis of the facts sub judice).

We affirm in part, reverse in part, and remand for reassessment of the interest due appellee, using a six percent rate; and further remand for an evidentiary hearing at which competent evidence will be submitted to aid the court in the assessment against appellant of a reasonable fee for appellee’s accountant’s services, to be taxed as costs.

It is so ordered.


author: SCHWARTZ, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Ronald A. SAMTER et al., Appellees.
    No. 80-1014.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 4, 1981.
    H. Reynolds Sampson, Tallahassee, for appellant.
    Brigham, Reynolds, Byrne & Moore and Robert C. Byrne, Miami, for appellees.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

The Department of Transportation appeals from a $15,000 jury award and judgment for severance damages to a parcel in northwest Dade County it had condemned for interstate highway purposes. It contends that the sole evidence which supports this aspect of the judgment was improperly admitted at the trial. We agree and reverse.

The property taken, some 3.8 acres of a 10 acre tract, was acquired to construct an embankment so as to permit N.W. 154th street to pass over the southern end of 1-75. The area is presently undeveloped, has no road frontage and is zoned GU (general use) on an interim basis.

In attempting to carry their burden, see City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649, 653 (Fla.1975), of establishing the existence and amount of damages to the untaken portion of the parcel purportedly caused by the to-be-adjoining embankment, the owners presented the testimony of a single witness, an expert appraiser named John Lukaes. Lukaes avowedly based his opinion on severance damages entirely on sales of vacant property likewise burdened by an adjacent overpass. But, Lukaes said, the only sale he could find, either in Dade or in Broward County, which was comparable in the sense that it involved property with a similar encumbrance, was not comparable in any other respect. Over the D.O.T.’s repeated objections, Lukaes was permitted to extrapolate to the parcels in question below from the percentage of diminution in the sale price caused by an overpass on a parcel in Broward County which (a) had commercial, rather than “general,” zoning (b) consisted of a one-half acre site, rather than a 10 acre tract and (c) perhaps most important, was located on a paved, major highway rather than having no road access. Lukaes conformed the therefore obviously non-comparable Broward damages to the present situation simply by reducing them by fifty percent. He testified as follows:

Q. Now to compare GU property with commercial property, do you have to make an adjustment for that, sir?
A. Yes.
Q. In determining the severance damages in this case, did you make such an adjustment?
A. Yes, I did, sir.
******
Q. (By Mr. Byrne) Based upon your search, Mr. Lukaes, did you arrive upon some comparable properties to measure the severance damage in question?
A. Yes, sir.
Q. Would you tell us about those, please.
A. These were identified as sales R-4 and R-2.
Sale R-4 took place in May of 1976 between Mr. Bennett and the American National Red Cross involving a vacant tract of land on the south side.
******
Q. (By Mr. Byrne) Please continue, Mr. Lukaes.
A. Containing 21,395 square feet on the south side of the embankment of the bridge approach going over 1-95 at Bro-ward Boulevard.
That sale took place at the unit price of $1.43 per square foot.
Sale number R-2 which took place August 29,1978 between Thomas Burns and Stuart Milstein involved commercial property located on the north side of Bro-ward Boulevard east of 1-95, but not behind an embankment and contained 27,335 square feet. That sold for a price of $3.35 per square foot.
With respect to the difference between the two, first I adjusted for the difference in time so that they would be as of the same date, and I used the same rate of one and a half percent per month. This indicated a net differential between the two sales of $2.16 per square foot behind the bank and $3.25 per square foot not affected by the bank. A difference of minus 35 and a half percent. In other words, the property behind the bank sold for 35 and a half percent less per square foot than the property that was not so encumbered.
Recognizing the fact that these properties were commercially zoned and in the area of more urban development than the subject properties, I attributed a 50 percent reduction in the indicated value of these lands and the subject property; that the subject property would not experience in the immediate time period.
I reduced that by 50 percent which gave me a 17 and a half percent value loss. I rounded that to 15 percent and applied the factor of 15 percent to the acreage price as the indicated diminution in value to the remainder parcel.
Q. Would you please apply that 15 percent to the before value of the Samter property and determine severance damage suffered in your opinion as a result of this taking.
A. The area of the damages?
Q. Now you have applied the 15.
# * * iff * Si!
A. (Continuing) With respect to Parcel 139 in estimating the damages to the remainder parcel I have applied a 15 percent reduction to the $28,500 per acre value before the taking, which indicates a loss of $4,275 per acre. The remainder parcel contains 6.159 acres. Multiplying the loss of $4,275 per acre by 6.159 acres, the damage equals $26,300. [e. s.]

It is apparent that this testimony should have been excluded from evidence. Our conclusion to this effect is compelled by an application and amalgam of two accepted principles of law which govern the admissibility of evidence of value in condemnation cases:

(1) It is clear that sales of comparable property may be employed as evidence only when “the land so sold were similar in locality and character to the land in question.” 27 Am.Jur.2d Eminent Domain, § 429, at 333 (1966). Accord, Williams v. Jacksonville Electric Authority, 250 So.2d 652 (Fla. 1st DCA 1971); 29A C.J.S. Eminent Domain, § 273(10) (1965); 1 Orgel, Valuation under Eminent Domain, § 138 (2d ed. 1953); see generally, Annot., Admissibility on issue of value of real property of evidence of sale price of other real property, 85 A.L.R.2d 110 (1962). Generally speaking, the question of comparability should be liberally viewed, see Orgel, supra, and is usually a matter for the discretion of the trial court. See, Annot., supra, 85 A.L.R.2d at 126-30, 177; cf., Home Owners of Winter Haven, Inc. v. Polk County, 320 So.2d 480 (Fla. 2d DCA 1975), cert. denied, 336 So.2d 106 (Fla.1976). Nevertheless, there can be no question that the two parcels sought to be compared in this case were so dissimilar as to the pertinent factors of location, size, use and character as to render evidence of damages to the Broward property inadmissible as a matter of law. See, Annot., supra, 85 A.L.R.2d at 130-40. The mere fact that each piece was burdened with the same type of abutting construction is obviously insufficient to create the requisite similarity. As is said in 5 Nichols, Eminent Domain, §§ 23.4, 23.5 (3d ed. 1979):

A witness should not be allowed to testify that other property in the same general neighborhood was injured by a similar public work a few years before, and a fortiori, witnesses should not be permitted to base their testimony as to damages upon the effect of similar structures in other cities and towns, when the situation was not shown to be the same.
* * * * * *
In jurisdictions in which the actual prices paid for similar lands, or actual rents received from adjoining buildings are admissible to show value before the taking or injury, sales and rentals of similar lands affected by the same or a similar improvement are admissible to show value after the injury. Evidence of this character is, however, strictly limited to land sufficiently similar to the land injured and to sales sufficiently close in place and time, to have made the evidence competent to show value before the taking or injury. It is not competent in order to prove that the value of a farm in one place was unfavorably affected by the construction of a railroad through it, to show that other farms in other places with similar railroads through them sold for low figures, or even that such farms sold for a high price before the railroad was built and a low price afterward. It is not competent, in order to show the damage to a piece of abutting real estate from the construction and operation of an elevated railway in a public street, to prove that values of similar property in other cities, or in other sections of the same city, suffered a certain percentage of depreciation when an elevated railway was built in the street in front of them. [e. s.]

See also, Williams v. Jacksonville Electric Authority, supra. The reason for this is clear. The comparable sales document is essentially one of relevance. Applying the definition of relevant evidence contained in the Florida Evidence Code, Section 90.401, Florida Statutes (1979), it simply cannot be said that the fact that the Broward property sustained X dollars in severance damages because of the embankment “tend[s] to prove or disprove [the] material fact” of whether or how much damage was sustained by the entirely different parcel involved in this case.

(2) Lukács’ attempt to convert the thus irrelevant to the hopefully relevant by applying a stated percentage of difference between the two parcels runs afoul of the principle that — in this field as in every other, see Holl v. Talcott, 191 So.2d 40, 45 (Fla.1966) — no weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning. Walters v. State Road Department, 239 So.2d 878 (Fla. 1st DCA 1970). It is clear that the 50% figure used to compensate for the admitted dissimilarities in the properties came only from the top of Lu-kács’ head. Under this doctrine, it could therefore not be employed as a basis for admission of his opinion of value. Any other conclusion would totally destroy the comparability rule. As the court held in City of Garland v. Joyce, 462 S.W.2d 86 (Tex.Civ.App.1970):

Our decision does not turn on the fact, insisted upon by the appellant, that the 14 sales complained of were properly zoned differently from that of appellee. Our opinion is based on the fact that the sales complained of were simply not sales of comparable property. We are mindful of the extent of the discretion vested in the trial judge in passing on admissibility of sales said to be comparable, and of the rule that such properties need not be identical to the tract in suit. To permit a witness, however, to relate to the jury sales of tracts obviously not similar, and then ‘adjust’ these sales and the prices paid to the opinion of the witness so as to call them ‘comparable’ is to set up an unlimited artificial standard by which almost any conceivable sale could be ‘adjusted’ so as to be made available in support of opinion as to value. 462 S.W.2d at 88.

The result of what happened below is that Lukács was permitted to state that the instant parcel sustained some severance damage only because the value of completely dissimilar property had been diminished by the same kind of structure. Such a determination is contrary to the most basic rules of evidence. Apples may not be compared to oranges, even when an expert evaluates the botanical distinctions between them.

For these reasons, the award of $15,000 for severance damages to parcel no. 139 shall be stricken from the judgment under review.

Reversed.

      . There is no claim of error in the $95,000 awarded for the portion actually taken.

      . The D.O.T.’s expert stated that there were no severance damages whatever.

      . This is conclusively demonstrated by Lukaes’ opinion with respect to the severance damages caused to another parcel which was also involved in the trial below. As to that issue, although he felt there might be some damages, he made no valuation at all because he had located no sales which even he considered comparable.

      . Lukaes arrived at this figure by the rather sophisticated method of comparing sales of a parcel which had an adjoining embankment with another which was otherwise entirely similar, but which had no such encumbrance. There is no claim that this method of determining damage to the Broward property was inappropriate, only that the use of the resulting amount to compute the damages to the instant property was improper.

      .If the sales were otherwise comparable, the fact that they took place in an adjoining county is insufficient to justify exclusion. Claiborne v. City of Jacksonville, 260 So.2d 257 (Fla. 1st DCA 1972); Rochelle v. State Road Department, 196 So.2d 477 (Fla. 2d DCA 1967).

      . We of course do not preclude expert adjustments from sales which are generally and genuinely comparable so as to accommodate the distinctions which to a greater or lesser extent, must always exist.

      . See note 3, supra.

      . It is significant that Lukács did not — perhaps because he could not or was unwilling to do so — express his own expert opinion as to severance damages based on factors other than a comparison with the Broward parcel. Since this is so, we do not address the issues involved in the expression of such an opinion when no comparable sales are available, see, e. g, United States v. 3,727.91 Acres of Land in Missouri, 563 F.2d 357 (8th Cir. 1977); Arkansas State Highway Commission v. Steen, 253 Ark. 908, 489 S.W.2d 781 (1973); State, through the Department of Highways v. Finkelstein, 340 So.2d 1040 (La.App.1976), or whether non -compara-bles may be used as “data properties” for use only in the expert’s formulation of his opinion of value. State v. Dillingham Corp., 591 P.2d 1049 (Hawaii 1979).


author: BERANEK, Judge.

text:
    DEANZA CORPORATION, Appellant, v. Robert VONOFLORIO and Teresa Vonoflorio, his wife, Metzger Homes, Inc., a Florida Corporation, Highland Mobile Home Sales, Nobility Homes, Inc., a Florida Corporation, John Liebl and Frank Argenzio, Appellees.
    No. 80-993.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Rehearing Denied March 9, 1981.
    Neil J. Berman, Miami, for appellant.
    John L. Walkden, Fort Lauderdale, for appellees.
   BERANEK, Judge.

This is a non-final appeal from an order granting plaintiffs, Robert and Teresa Vo-noflorio, a temporary injunction, restraining defendant, Deanza Corporation, from (a) moving or otherwise tampering with surveyor’s stakes on Lot 1, Block 27 of Deanza Colonies of Margate, and (b) tampering in any way with the Vonoflorios’ leasehold interest under the lease between the Vonoflorios and Deanza Colonies of Margate, pending further order of the court and subject to plaintiffs’ posting a $1700 bond. Deanza Corporation argues the lower court erroneously granted the injunction because no complaint therefor was filed. The Vonoflorios counter that a complaint per se was unnecessary, that their motion for temporary injunction fulfilled the requirement. We reverse.

Florida Rule of Civil Procedure 1.610(a) unequivocally provides that “[n]o injunction shall be granted until a complaint therefor is filed.” The Rule makes no mention of a motion until subsection (e) which authorizes issuance of injunctions to stay other proceedings on motion. A motion clearly does not satisfy the purposes of a complaint which requires service, an answer, and establishes the issues before the trial court. Since the Vonoflorios filed no written complaint requesting a temporary injunction, the trial court erred in issuing the injunction pursuant to a motion. See Seminole Park and Fairgrounds, Inc. v. Tropic Bank of Seminole, 380 So.2d 1335 (Fla. 5th DCA 1980).

Furthermore, as this case aptly illustrates, permitting issuance of a temporary injunction via motion creates the potential for an inconsistent result. Here the Vonof-lorios’ complaint requested, among other things, compensatory damages for Deanza Corporation’s breach of the lease. At the same time, their motion for temporary injunction sought relief on grounds that they would be deprived of their leasehold interest resulting in an unascertainable financial loss. It is obviously inconsistent for the Vonoflorios to plead breach of contract requesting damages in the complaint and to seek injunctive relief by motion because damages are unascertainable for the same wrongdoing. Although such inconsistent claims may be proper in the pleading stages they are mutually exclusive from the standpoint of a final disposition of the case. The filing of a complaint and establishment of the injunction issues should not have been disregarded herein.

Accordingly, the order granting the temporary injunction is reversed.

REVERSED AND REMANDED.

DOWNEY and MOORE, JJ„ concur.


author: McCORD, Judge.

text:
    CITY OF TALLAHASSEE, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellee.
    No. PP-113.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.

      James M. Blue, Robert L. Norton, and M. Susan Potter of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellant.
    Curtis A. Billingsley, Tallahassee, for ap-pellee.
    Roy T. Rhodes of Horne, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, for International Assn, of Firefighters, Local 2339, Real Party in Interest.
    Robert A. Sugarman of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, Miami, for amicus curiae Professional Fire Fighters of Florida, Inc.
    Gene “Hal” Johnson, Tallahassee, for amicus curiae Florida Police Benevolent Ass’n, Inc.
    Robert D. Klausner of Weinsoff & Klaus-ner, Miami, for amicus curiae American Federation of State, County, and Municipal Employees Council 79.
    Patricia A. Renovitch, Tallahassee, for amicus curiae Florida Education Ass’n/United, AFT, AFL-CIO.
    David V. Kerns and Stephen S. Mathues, Tallahassee, for amicus curiae Department of Administration, Division of Retirement.
   McCORD, Judge.

This appeal is from a Public Employees Relations Commission (PERC) order entered pursuant to a petition of the City of Tallahassee for a declaratory statement under Sections 120.565 and 447.207(7), Florida Statutes (1979).

The City has a pension ordinance in which it has in the past made changes without negotiating with the labor organizations. The City may desire to make more changes in the pension plan in the future, and thus it filed the petition for declaratory statement. The International Association of Firefighters, the certified bargaining agent for a unit of Tallahassee Firefighters, opposed the position taken by the City on the petition. The petition asked the Commission to answer the following questions: (1) Whether a pension plan covered by the City ordinance is a permissive or prohibited subject of bargaining under Sections 447.-301(2) and 447.309(5), Florida Statutes (1979). (2) Assuming that pension plans covered by a city ordinance are permissive subjects of bargaining, if a collective bargaining agreement is silent on the specific subject of pensions, can the employer make a unilateral change in city ordinances covering pensions without violating Section 447.-501, Florida Statutes, or the law as developed by the PERC decision in Orange County School Board, 3 FPER 280 (1977)? (3) Assuming that a pension plan covered by a city ordinance is a permissive subject of bargaining and that consent to bargain over a permissive subject of bargaining may be freely given or withdrawn at any time during negotiations, must a contractual waiver of an employer’s right to make unilateral changes as to a permissive subject such as pension be clear and unequivocal?

In response to Question No. 1, the Commission relied on its decision in City of Miami, 4 FPER 4134 (1978), in which it held that the effect of Sections 447.301(2) and 447.309(5), Florida Statutes, was to remove the employees’ right to negotiate on retirement to the extent that the subject of retirement is controlled by state statute or local ordinance, but that the statutes do not prohibit such negotiation upon mutual agreement by the parties. On Question 2, the Commission determined that pursuant to Section 447.301(2), the employer is under no statutory obligation to bargain over a change in an ordinance or statute pertaining to pension plans unless the agreement covers the subject. The Commission refused to answer Question 3 on the theory that since the Union had filed a grievance under the contract challenging the City’s right to unilaterally change the ordinance covering the pension plan, its response would be inappropriate since an answer would involve construing a provision of the contract to determine whether it constituted a waiver of the City’s right to refuse to negotiate over provisions in its retirement ordinance.

Upon considering this appeal, we concluded that an overriding question which was not raised by the parties should be ruled upon initially, and we therefore entered an order on our own motion raising the following question and directing the parties to file additional briefs thereon: Are the phrases “excluding any provisions of the Florida Statutes or appropriate ordinances relating to retirement” contained in Section 447.-301(2), Florida Statutes, and “except those terms and conditions provided for in any Florida statute or appropriate ordinances relating to retirement and the applicable merit and civil service rules and regulations” contained in Section 447.309(5), Florida Statutes, rendered unconstitutional by the following provision of Article I, Section 6, of the Constitution of the State of Florida:

“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged”?

We thereafter granted motions to file ami-cus curiae briefs on this question filed by the Florida Education Association/United, AFT, AFL-CIO; the Department of Administration, Division of Retirement; the Florida Police Benevolent Association, Inc.; the American Federation of State, County, and Municipal Employees, Council 79; and Professional Firefighters of Florida, Inc., and heard oral argument on the constitutional question raised by the Court.

To bring the issue into focus, Article I, Section 6, of the Constitution of Florida states:

Right to work. — The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike. (Emphasis supplied.)

Section 447.301(2), a part of the statute which implements the above constitutional provision, states in pertinent part as follows:

Public employees shall have the right to be represented by any employee organization of their own choosing and to negotiate collectively, through a certified bargaining agent, with their public employer in the determination of the terms and conditions of their employment, excluding any provisions of the Florida Statutes or appropriate ordinances relating to retirement ... (Emphasis supplied.) Any collective bargaining agreement shall not provide for a term of existence of more than 3 years and shall contain all of the terms and conditions of employment of the employees in the bargaining unit during such term except those terms and conditions provided for in any Florida statute or appropriate ordinances relating to retirement and in applicable merit and civil service rules and regulations. (Emphasis supplied.)

Section 447.309(5), Florida Statutes, also part of the implementing statute, states as follows:

The question is: Do the underlined portions of the above statutes abridge the constitutional right of employees to bargain collectively? We find they do.

In considering the word “abridge,” the Supreme Court in Schermerhorn v. Local 1625 of Retail Clerks Int. Ass’n, 141 So.2d 269 (Fla.1962), said:

‘Anything which imposes a charge or expense upon the free exercise of a right, abridges it in the sense of curtailing or lessening the use or enjoyment of that right. As defined in Webster’s New International Dictionary, to abridge is “to deprive; to cut off; to diminish, curtail.” And “abridge” is defined in The Oxford English Dictionary as being “to curtail, to lessen, to diminish (rights, privileges, advantages, or authority.)” ...’

The Supreme Court in Dade County Classroom Teachers' Ass’n., Inc. v. Ryan, 225 So.2d 903 (Fla.1969), in construing Article I, Section 6, of the Constitution said:

We hold that with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.

Footnoting that statement, the Supreme Court said:

1. The legislative record of the submission of HJR 1-2 X(68), the joint resolution ratified as the Constitutional Revision of 1968, reflects the Legislature intended both private and public employees to be included in the word “employees” in the second sentence of Section 6. See Conference Committee Report, House Journal, p. 89, July 3, 1968, and Senate Journal, p. 113, July 3,1968, Special Revision Session, 1968, in contrast to earlier revision drafts.

Private employees have the right to collectively bargain with their employer as to retirement benefits. See Retail Clerks Union, No. 1550 v. NLRB, 330 F.2d 210 (D.C.Cir.1964), in which the court said:

“Pension plans are, of course, appropriate subjects for collective bargaining, and no employer is privileged to refuse to discuss them.”

See also Hinson v. NLRB, 428 F.2d 133 (8th Cir. 1970); NLRB v. Black-Clawson Co., 210 F.2d 523 (6th Cir. 1954); NLRB v. Jacob Mfg. Co. 196 F.2d 680 (2d Cir. 1952); and Inland Steel Co. v. NLRB, 170 F.2d 247 (7th Cir. 1948), aff’d. 339 U.S. 382, 70 S.Ct. 674, 91 L.Ed. 925 (1950). The recognition of retirement as an employee fringe benefit is consistent with Florida law. Williams v. Smith, 360 So.2d 417 (Fla.1978); Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1 DCA 1979); and Seward v. Dept. of Administration, Division of Retirement, 366 So.2d 82 (Fla. 1st DCA 1978).

Since private employees have the right to collectively bargain as to retirement benefits, public employees also have that right under the ruling of the Supreme Court in Dade County Classroom Teachers’ Ass’n v. Ryan, supra. The legislative enactment removing retirement as a subject of collective bargaining for public employees abridges or curtails that right and, therefore, violates Article I, Section 6, of the Florida Constitution. We recognize, as did the Supreme Court in Dade County Classroom Teachers’ Ass’n., Inc. v. Ryan, supra, that considerable deference should be accorded to legislative enactments implementing Article I, Section 6. However, such deference does not extend to upholding an abridgement of a constitutional right granted under said Section 6 unless, unlike the enactment here, there is a rational basis for the abridgement which is justified by a compelling state interest.

Amicus curiae Department of Administration, Division of Retirement, calls attention to the fact that in 1976 the following language was added to the Florida Constitution:

State retirement systems benefit changes. — A governmental unit responsible for any retirement or pension system supported in whole or in part by public funds shall not after January 1, 1977, provide any increase in the benefits to the members or beneficiaries of such system unless such unit has made or concurrently makes provision for the funding of the increase in benefits on a sound actuarial basis. (Art. X, § 14, Fla.Const.)

The Division of Retirement points out that the questioned phrases in Sections 447.-301(2) and 447.309(5) were added by amendment to those sections by Chapter 77-343, Laws of Florida, and states that such addition was made because of this new constitutional provision; that it was necessary to eliminate retirement from collective bargaining in order to protect the actuarial soundness of the public pension funds as mandated by the new constitutional provision. This new provision, however, does not mandate that collective bargaining as to retirement be eliminated. Collective bargaining not only does not require that a government agree to a retirement benefit [Section 447.203(14), Florida Statutes] but the new provision prohibits a government from agreeing to a benefit that will render the retirement fund actuarilly unsound unless it makes provision for the funding of the benefit on a sound actuarial basis. If a public employer cannot or does not want to fund a union’s proposed retirement benefit, it can say no. In addition, Section 447.-309(3), Florida Statutes provides as follows:

If any provision of a collective bargaining agreement is in conflict with any law, ordinance, rule, or regulation over which the chief executive officer has no amend-atory power, the chief executive officer shall submit to the appropriate governmental body having amendatory power a proposed amendment to such law, ordinance, rule, or regulation. Unless and until such amendment is enacted or adopted and becomes effective, the conflicting provision of the collective bargaining agreement shall not become effective.

There is no conflict between Article X, Section 14, and Article I, Section 6, of the Florida Constitution.

We hold the following phrase contained in Section 447.301(2) Florida Statutes, unconstitutional:

“excluding any provisions of the Florida Statutes or appropriate ordinances relating to retirement.”

We also hold the following phrase contained in Section 447.309(5), Florida Statutes, unconstitutional:

“except those terms and conditions provided for in any Florida statute or appropriate ordinances relating to retirement.”

These phrases are severable and are deleted leaving standing the remainder of the respective statutes. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978).

The three questions propounded to PERC by the City each called for an interpretation of the provisions of Sections 447.301(2) and 447.309(5), which we here hold to be unconstitutional. Our ruling on the constitutional issue renders PERC’s ruling on the three questions moot.

REVERSED.

SMITH, and WENTWORTH, JJ., concur.

      . The latter part of the quoted phrase, “and the applicable merit and civil service rules and regulations” was included in the question through error. We are here concerned only with retirement.


text:
    DUVAL COUNTY SCHOOL BOARD, Appellant, v. DUVAL TEACHERS UNITED FEA/UNITED, AFT, AFL-CIO, LOCAL NO. 3326, Appellee.
    No. SS-296.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.

      Dawson A. McQuaig, Gen. Counsel, William Lee Allen and David C. Carter, Asst. Counsel, Jacksonville, for appellant.
    Patricia A. Renovitch, Gen. Counsel, Crawfordville, for appellee.
   McCORD, Judge.

Duval County School Board appeals an order of the Public Employees Relations Commission (PERC) which, in response to a petition for declaratory statement, answered the following question in the affirmative:

Does Section 447.401, Florida Statutes, require that the certified bargaining agent be permitted to file and process grievances involving the interpretation or application of a collective bargaining agreement in its own name?

We find that § 447.401, Florida Statutes (1979), does not restrict the union’s participation as a party to grievance procedures. Furthermore, the statute does not lend itself to the interpretation that the requirement to negotiate grievance procedures includes a requirement that the union also negotiate whether or not it may file or process grievances in its own name. The union, through the grievance procedure, may police the collective bargaining agreement which it has negotiated. Therefore, on the narrow issues presented and briefed, we affirm.

To the extent appellee relies on Heath v. School Board of Orange County, 5 FPER § 10074 (1979), to support the result here, we caution that we do not rule on the validity of the majority opinion there. We find the dissenting opinion in that case very persuasive. Specifically, we do not rule here that the union is the exclusive bargaining agent for all employees involved in grievance procedures. Section 447.301(4) provides:

Nothing in this part shall be construed to prevent any public employee from presenting, at any time, his own grievances, in person or by legal counsel, to his public employer and having such grievances adjusted without the intervention of the bargaining agent, if the adjustment is not inconsistent with the terms of the collective bargaining agreement then in effect and if the bargaining agent has been given reasonable opportunity to be present at any meeting called for the resolution of such grievances.
AFFIRMED.

SHIVERS and JOANOS, JJ., concur.