author: COWART, Judge.

text:
    Blanche O. RAY, Personal Representative, and the Heirs of the Estate of Dorothy O. Waldon, Appellants, v. Raymond J. ROTELLA, Trustee, Appellee.
    No. 81-1261.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 18, 1983.
    Linton S. Waterhouse, Orlando, for appellants.
    Raymond J. Rotella of Zinkow, Kosto & Rotella, Orlando, for appellee.
   COWART, Judge.

This is an appeal from an order in a probate action removing a personal representative.

In 1976 Dorothy Waldon died intestate leaving a house then valued at $12,700 and a car then valued at $500 and essentially no debts. Mrs. Waldon’s heirs consisted of her four children, one of which, Blanche 0. Ray, was appointed personal representative of the decedent’s estate. The personal representative petitioned to mortgage the house to borrow the funds necessary to make $3,500 of repairs to the house, which repairs were authorized by the other heirs. The court entered an order permitting this. On May 17, 1978, after the estate had been opened more than twelve months, the probate court ordered the estate to be closed without further delay. Fla.R.P. & G.P. 5.400(b). The probate court on September 27,1978, extended for four months the time to close the estate. To this point the estate proceedings consisted of 23 pages of the 187 page record on appeal.

On July 16, 1979, Blanche O. Ray filed a voluntary petition in bankruptcy. Appellee was appointed trustee and being vested by operation of law with the title of the bankrupt heir, the trustee was permitted to intervene in the estate proceedings. Then the trouble began. The trustee moved to require an accounting and for the estate to be closed. On January 22,1980, a non-taxable certificate was filed and the probate court entered another order to close the estate. The heirs, including Blanche Ray, waived final accounting and consented to the discharge of the personal representative. The trustee objected, primarily because of some remark at a hearing that Blanche had waived her right to charge a personal representatives fee and the trustee wanted that fee and wanted to be sure that Blanche’s interest in the estate was distributed to the trustee. Blanche filed a final accounting that showed receipts from a $5,700 mortgage loan on May, 1977, plus $1,600 resulting from a modification of the mortgage on October, 1978, and an additional $7,052.72 as a result of a modification of the mortgage in June of 1979. This total of $14,352.72 was accounted for, with all but $68.19 having been expended for costs of probate, repairs to the house and loans to the heirs. The trustee objected to the final accounting. Blanche petitioned for discharge proposing a distribution of assets to the four heirs. An order was entered directing a distribution to the trustee of all disbursements that Blanche O. Ray would be entitled to under the will of Dorothy O. Waldon. Another order entered at the trustee’s behest directed the personal representative to attempt to recover the monies loaned to the heirs. The trustee then amended the objection to the final accounting to request that rent be fixed and collected from one of the heirs who occupied the house. The trustee then petitioned to remove the personal representative because she had borrowed the $14,352.72 rather than the authorized $3,500, had delivered some of the borrowed funds to heirs without court approval, had taken no steps to recover said funds from the heirs, and had let the one heir occupy the house without paying rent. The trustee also petitioned the probate court to partition the house for the purpose of distribution. Fla.R.P. & G.P. 5.390, § 733.814, Fla.Stat. (1981). Blanche filed an amended final accounting which actually only argued that the final accounting previously filed was in error in that the mortgage loans had not been made to the estate under court order but had been made to the heirs themselves without obligating the estate. By order dated May 20, 1981, the court removed Blanche as personal representative and appointed the trustee in bankruptcy as personal representative and adjudicated that the trustee was entitled to receive Blanche’s share of the real estate free and clear of all liens including that of the institution that made the mortgage loan totaling $14,352.72, except for $4,923.27 previously approved by the court. The trustee, acting as personal representative, filed a second amended petition to partition alleging a plan to have the house sold to increase the marketability of the trustee’s one-fourth interest in the house and so that the money from such sale would go through the estate and be so distributed that only one-fourth of the $4,923.27 would be deducted from the trustee’s one-fourth interest in the gross sales price of the house (rather than distributing the house in kind which would result in the trustee’s one-fourth interest being subject to the outstanding balance due on the $14,352.72 mortgage lien). The trustee-personal representative, an attorney, also applied for a fee of $5,445 for services as attorney for the personal representative.

The heirs appeal the May 20, 1981, order, removing Blanche as personal representative and adjudicating that the trustee was entitled to Blanche’s share of the estate subject only to a proportionate share of the $4,923.27. We reverse.

When Dorothy Waldon died intestate in 1976, the title to her property descended to her heirs, being her four children, subject to existing liens, encumbrances, defects, and the administration of her estate by the personal representative. The personal representative has limited rights to possession of, and power over the title to, the property of a decedent. If necessary for purposes of administration, the personal representative has a right to possession and control of the decedent’s property, except the homestead. § 733.607, Fla.Stat. (1981). The powers of the representative over the property of the estate are limited. § 733.612, Fla.Stat. (1981). In the absence of a will, the personal representative possesses the estate property only for the purposes of payment of debts; family allowances; estate and inheritance taxes; claims, charges and expenses of administration; to enforce contributions; to equalize advances; and for distribution. § 733.608, Fla.Stat. (1981). The personal representative does have certain powers of distribution. See §§ 733.608(3), 733.612(26), and 733.810, Fla.Stat. (1981).

As stated above, the title to the property of an intestate decedent passes at death directly to the heirs subject to the administration of the estate. Actually in legal contemplation this can be likened to the common law concept of an estate vesting subject to possible divestment in that the inherited title of the heirs is, during the administration of the estate, defeasible if it is necessary for the property to be sold by the personal representative for any proper purpose such as to raise money for the payment of debts and taxes, the costs of administration or for distribution as contemplated by sections 733.810(l)(b) and 733.813, Fla.Stat. (1981). However, the limitation on the heirs’ inherited title as it relates to the personal representative’s powers relating to distribution, is itself somewhat limited for two reasons. First, it is the policy of the law that the distributable assets of an estate be distributed in kind. § 733.810(1), Fla.Stat. (1981). Secondly, since the heirs have already inherited the title, the distribution to them is not of the title but is of the personal representative’s rights and is legally more in the nature of a formal termination of the possession and power of divestment that exists in the personal representative during administration. Since the entry of an order discharging the personal representative is also a formal termination of those same rights of possession and power, it effectively constitutes a “distribution” to the heirs in keeping with the title that descended to them in the manner provided by law. However, cautious title lawyers consider it the better practice for the personal representative to petition to authorize distribution and, pursuant to court order, to execute a deed or other formal instrument of distribution purporting to transfer specific property to the heirs. While not legally necessary in order for the heirs’ inherited title to be freed of the potential divestment for estate administration purposes, such an instrument may constitute “conclusive evidence” and give distributees and their purchasers and lenders some added benefits under sections 733.-811 and 733.813, Fla.Stat. (1981).

In any event, this was a small, simple estate with no problems involving debts or estate taxes and it should have long ago been closed and should not have been subjected to the ravages of the trustee in bankruptcy attempting to secure an advantage over the co-heirs of the bankrupt heir in and through the administration of the estate. After the decedent’s death, her heirs had a title that they could convey or encumber. Here, as clearly shown by the record, the four heirs of the decedent actually personally borrowed the $14,352.72 and secured that loan with personal notes and by personally executing a mortgage against their inherited title. To the extent the title to the property was encumbered with the approval of the probate court to raise money for proper estate purposes, the mortgagee’s lien would not only be good against the heirs but also good against the personal representative and persons interested in the estate, including creditors. To the extent the heirs convey or encumber their title without properly clearing it through the estate proceedings, the title and liens of purchasers and lienors claiming through the heirs continue to be subject to the power of the personal representative of the estate to divest them of such title for proper purposes of administration of the estate just as the personal representative could do with respect to the heirs’ rights. Therefore heirs do not injure the estate or persons interested in the estate by selling or encumbering their own title. Regardless of the fact that the mortgaged title may have, in part, continued to be subject to the administration of the decedent’s estate and regardless of the fact that the heirs may have let Blanche distribute the loan proceeds and that some of the proceeds were used to pay costs of administration and that Blanche erroneously reported those proceeds as receipts by her as personal representative, in law and in fact the borrowed monies were the heirs own personal funds. The whole borrowing business and Blanche’s failure to recover the loan proceeds distributed directly to the heirs without court authority were not proper grounds upon which to remove her as personal representative and the appealed order is reversed and the cause remanded with directions to forthwith close this estate.

REVERSED AND REMANDED WITH INSTRUCTIONS.

COBB and SHARP, JJ., concur.

      . This was an intestate estate and this reference to the will of Dorothy O. Waldon is but one of many errors revealed by a careful review of this probate proceeding.

      . Title to property of a testate decedent is different because a will constitutes a muniment of title as to devised property.

      . The estate of a decedent is not an entity that receives the title and passes it on to the heirs or devisees if not conveyed to others for other purposes during administration. Section 732.-101(2), Florida Statutes, provides: “The decedent’s death is the event that vests the heirs’ right to intestate property.” The term “right to property” means title. See Grobard v. Grobard, 382 So.2d 117 (Fla. 3d DCA 1980).

        .See §§ 732.102, 732.103 and 732.401, Fla. Stat. (1981).

      . Such deeds of distribution may also benefit the record title as the basis for limitations (see §§ 95.22 and 95.231, Fla.Stat. (1981)). Carefully worded recitals of facts relating to heirship inserted in such deeds can also become admissible and prima facie evidence of essential facts. See § 90.803(14), (15) and (16), Fla.Stat. (1981).

      . We note that the last mortgage loan modification which resulted in loan proceeds of $6,447.28 was made before, and recorded on, June 25, 1979, several weeks before Blanche filed her voluntary petition in bankruptcy. Under section 70 of the bankruptcy act (11 U.S.C. § 110) the trustee in bankruptcy was vested by operation of law with the title of the bankrupt as of the date of the filing of the petition and apparently took her inherited interest subject to the mortgage encumbrance that she had placed against it. If the trustee desires to attack the validity of the mortgage he has ample methods and remedies but not in the probate proceeding. In this particular case, if the trustee desires partition, he should proceed by a separate action under chapter 64, Florida Statutes, rather than under section 733.814, Florida Statutes, which will but further delay the closing of this estate.


source: Caselaw Access Project

license: Public Domain

text:
    SENTRY INSURANCE A MUTUAL COMPANY, Appellant, v. Michael R. McGOWAN, et ux., Appellees.
    No. 82-661.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 20, 1983.
    Reinald Werrenrath, III of Akerman, Senterfitt & Eidson, Orlando, for appellant Sentry.
    R. David Ayers, Jr., of R. David Ayers, Jr., P.A., Winter Park, for appellees.
   COWART, Judge.

This case involves the question of whether an insurer must offer uninsured motorist coverage each time the insured adds an additional vehicle to an existing policy.

In February of 1979 McGowan, as insured, took out an insurance policy with appellant Sentry Insurance A Mutual Company, as insurer, providing $100,000 liability coverage on a 1979 pickup truck. The insured signed a written rejection of uninsured motorist coverage in the same amount as the liability coverage, opting instead for $25,000 of uninsured motorists coverage. In May of 1979 the insured called the insurer on the telephone and requested a 1978 Chrysler be added to the policy. This was done, but no new written rejection of uninsured motorist coverage equal to the liability coverage was executed. In August of 1979, the policy was renewed and the declaration sheet listed both vehicles and stated $100,000 liability and $25,000 uninsured motorist coverage. In September, 1979, the insured again telephoned the insurer and added a travel trailer to the policy. The policy was amended to provide only collision and comprehensive coverage on the trailer. Again no new written rejection of uninsured motorists coverage was obtained. The policy was again renewed in February, 1980, the declaration listing all three vehicles with $100,-000 liability coverage and $25,000 uninsured motorists coverage. In August of 1980 Michael McGowan, an additional insured under the policy, was injured by an uninsured motorist in an accident involving the 1979 pickup truck and a controversy arose as to whether the insured’s rejection was valid and the uninsured motorist coverage was only $25,000 or whether a new rejection of uninsured motorist coverage was required each time an additional vehicle was added to the existing policy and, this not being obtained, the uninsured motorist coverage was $100,000. On stipulated facts, the judgment on the pleadings was rendered against the insurer and in favor of the insured’s position that the policy provided $100,000 of uninsured motorists coverage. The insurer appeals. We reverse.

At the time the policy was issued, the pertinent statute, section 627.727, Florida Statutes (1979), provided that no liability policy would be issued without equal uninsured motorist coverage being provided. The statute read “the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage” and that “unless the named insured-requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.”

Under the statute, when a “new” policy of insurance is entered into, a specific rejection of uninsured motorist coverage equal to the liability limits must be obtained or the uninsured motorist limits will be construed to be equal to the liability limits; but no new rejection of the higher limits of uninsured motorist coverage is required when the policy is renewed. Appellant insurance company contends that adding vehicles to an existing policy is closer to renewal; the insured contends that adding additional vehicles is, in effect, entering into a new contract of insurance and a new rejection should be required. In the factually similar case of Maxwell v. United States Fidelity and Guaranty Co., 399 So.2d 1051 (Fla. 1st DCA 1981), the first district held that the statute did not require a new rejection of uninsured motorists coverage every time an additional vehicle was added to the policy in that case. The court noted that the key question was whether the addition of vehicles to the policy constituted the policy a “new” policy rather than a “renewal” policy. The Maxwell court placed great emphasis on the fact that the policy in that case was. a fleet policy and that the trial court specifically found that it was the intention of the parties that vehicles would be added and deleted regularly from the policy and that the rejection of uninsured motorist coverage would apply to all those vehicles. Notwithstanding the qualification that the Maxwell court placed on its own holding, we feel that the Maxwell court’s statement of the test to be applied is applicable and controls this case. The court in Maxwell stated that the test for whether a new rejection of uninsured motorist coverage had to be obtained is “whether the ‘original policy’ has been changed in any material respect.” Maxwell, 399 So.2d at 1054, citing United States Fidelity and Guaranty Co. v. Wain, 395 So.2d 1211, 1214 (Fla. 4th DCA 1981). Both this court and the first district have held that merely replacing the insured vehicle with another vehicle, where the liability limits in the amount of the premium do not change, does not constitute a material variation in the policy requiring a new rejection of uninsured motorist coverage to be made. Kenilworth Insurance Co. v. McCormick, 394 So.2d 1037 (Fla. 1st DCA 1981); State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980). We hold that the addition of new vehicles to an existing policy does not constitute a variation in the terms of the policy material enough to require a new rejection of uninsured motorist coverage each time an additional vehicle is added. Accordingly, the judgment on the pleadings determining the issue of insurance coverage in favor of the insured is

REVERSED and the cause remanded for further proceedings.

ORPINGER, C.J., and DAUKSCH, J., concur.


author: WENTWORTH, Judge.

text:
    Johnny LEWIS, Jr., Appellant, v. ALLSTATE INSURANCE CO., Appellee.
    No. AK-156.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 31, 1983.
    Stephen H. Echsner, of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.
    Michael D. Hook, of Sherrill, Moore & Hill, Pensacola, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a summary judgment which determined that he is not entitled to payment of personal injury protection (PIP) benefits under a contract of insurance between appellant’s uncle and appellee. Appellant is a resident in his uncle’s household and sustained injury when a truck collided with a county-owned bus in which appellant was a passenger. While the insurance contract involved in this case excludes coverage for injuries sustained in a vehicle “for hire,” the contract will nevertheless be enforced as if it were in compliance with Florida’s Automobile Reparations Reform Act, irrespective of the contract’s actual terms. See § 627.733(3)(a), Florida Statutes; State Farm Mutual Automobile Insurance Co. v. Chapman, 415 So.2d 47 (Fla. 5th DCA 1982). Section 627.-736(4)(d)3, Florida Statutes, requires payment of PIP- benefits in the circumstances of the present case. Section 627.734, Florida Statutes, relating to “Security Requirements,” merely exempts governmental entities from the required provisions of such benefits, and does not affect the obligations of private parties as are involved in the present case. See Chapman. We therefore conclude that, pursuant to § 627.736(4)(d)3, Florida Statutes, the insurance contract between appellant’s uncle and appellee affords coverage for the injury sustained by appellant as a passenger on the county-owned bus.

Accordingly, the order appealed is reversed.

McCORD and BOOTH, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Roy RIVERS, Appellant, v. STATE of Florida, Appellee.
    Nos. AK-485, AK-486.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Rehearing Denied Feb. 1, 1983.

      J. Craig Williams of Williams & Stapp, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellant, who was convicted of armed robbery of a Lil’ Champ Food Store that occurred on September 13, 1981, seeks reversal based upon his claim that several trial errors denied him a fair trial. We find reversible error in the trial court’s failure to instruct the jury on the limited purpose for which “Williams’ Rule” evidence was introduced at the time such evidence was presented to the jury.

The Florida Evidence Code, Section 90.-404(2)(b)2., provides that when evidence of other crimes is admitted, “the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered.” Recognizing that some aspects of the evidence code may be procedural, rather than substantive law, and therefore within the rule-making authority of the Supreme Court of Florida, that court, in a per curiam opinion dated June 28, 1979 (372 So.2d 1379), temporarily adopted the provisions of the code to the extent that they are procedural, as rules of the court, effective July 1, 1979. See, also, In Re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973). Consistent with the adoption of portions of the code as rules of court, the court also adopted a “Williams’ Rule” instruction which includes a “note , to judge” advising that such instruction is to be given at the time the evidence is admitted, “if requested.” The instruction, Florida Standard Jury Instructions, Criminal Cases, page 50 (effective July 1, 1981), is as follows:

The evidence you are about to receive concerning evidence of other crimes allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant and you shall consider it only as it relates to those issues.
However, the defendant is not on trial for a crime that is not included in the [information] [indictment].

A similar limiting instruction is required to be given at the close of the evidence.

The state contends that the Williams’ Rule instruction was never adequately requested, or if an adequate request was made it was made in connection with testimony that was not of a “collateral crime” nature. After a careful review of the record we are compelled to disagree with the state’s position.

At trial, appellant’s sole defense to the robbery charge was voluntary intoxication to the extent that he was unable to form the specific intent required for commission of the offense of robbery, namely, the intent to permanently deprive the victim of the money stolen. Cirack v. State, 201 So.2d 706 (Fla.1967); Mellins v. State, 395 So.2d 1207 (Fla. 4th DCA 1981); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979); 9 Fla.Jur., Criminal Law, § 414.

Appellant testified to his lack of comprehension of and ability to recall his own actions leading up to, during, and following the robbery. In furtherance of his defense he called and array of witnesses to confirm his heavy ingestion of drugs and alcohol, and to describe the apparent effects upon him, prior to commission of the offense. He also presented testimony from two psychiatrists to the effect that, by reason of his drugged and intoxicated state, he lacked the capacity to form the specific intent essential to the crime on the morning it occurred. One of these physicians, Dr. Saul, acknowledged that he understood appellant was accused of four robberies. The other psychiatrist, Dr. Miller, agreed that if a specific act is committed, the fact that the same act is repeated in different settings within short intervals could be considered as indicative of the ability to form the specific intent to commit the act the first time.

In rebuttal, for the purpose of proving the existence of the ability to form the necessary criminal intent, the state called as witnesses the victims of two other grocery store robberies — 7-Eleven and Zippy Mart — occurring on the same morning as the Lil’ Champ robbery. The state also called three persons who were witnesses to some portions of the events or activities directly or indirectly connected with these two robberies, as well as a third robbery occurring at Skinner’s Dairy Store on the same morning.

During the rebuttal testimony of Edward Radomski, the victim of the 7-Eleven store robbery, defense counsel moved for a mistrial because of the court’s failure to order consolidation of the case for trial with the cases involving the 7-Eleven store, in which an information had been filed, and the two others in which no information had been filed. No request was made for a cautionary “Williams’ Rule” instruction.

The next rebuttal witness, Francis L. Davis, was a witness to the Lil’ Champ robbery for which appellant was being tried. The state then called Kenneth Graham, the victim of the Zippy Mart robbery. Prior to Graham’s testimony, the following colloquy took place between defense counsel, the prosecuting attorney, and the court:

MR. WILLIAMS: At this time, for the record, this won’t [sic] be evidence of collateral offense and I renew my motion heretofore made for consolidation and move for a mistrial.
MR. PERKINS: Your Honor, for the record, I would state that this is being used in rebuttal. There is no requirement of Williams’ Rule notice.
THE COURT: I understand. I will deny the motion.
MR. WILLIAMS: Your Honor, do you deny my request for an instruction and motion for mistrial?
THE COURT: Yes.

Graham then gave testimony that while working as a clerk for the Zippy Mart, a man using a double barrelled shotgun robbed him of the store’s money and some food stamps.

Graham was followed on the witness stand by Robert Steele, who testified to his observations of individuals (ostensibly the robbers) and their brown Mazda car parked at the Zippy Mart store.

The state then called Richard Smith, at which point defense counsel registered an objection and request, and received the court’s ruling, as follows:

MR. WILLIAMS: Your Honor, I make the same objection I previously made for the record and same request for an instruction and I understand your ruling probably will be the same.
THE COURT: All right.

Smith then proceeded to relate details of his observation of a small brown car at Skinner’s Dairy Store, and an individual who got out of the car, entered Skinner’s Store, and emerged running a short time later.

Next in this series of rebuttal witnesses was Billie Collins, who related statements allegedly made by appellant concerning his having taken care of “some business” at Skinner’s Dairy, on the morning of the robbery; also that appellant and a companion later divided some money between them. Defense counsel made the following objection and received the following ruling during this testimony:

MR. WILLIAMS: I would move for a mistrial and a limited instruction based upon evidence of collateral offense for which the defendant is not on trial. For purpose of preserving the record, I will make a continuing objection.
THE COURT: All right. For the record, I intend to instruct and probably add an addition to the standard instruction as to the fact that the defendant is only on trial for the crime alleged in the information, but I don’t think under the circumstances it is necessary to do it at this point since this testimony is apparently being offered to show the state of mind without any attention to time [sic], so I will deny your motion.

This court’s opinion in Hubbard v. State, 411 So.2d 1312, 1314 (Fla. 1st DCA 1982), quoted favorably in Spurlock v. State, 420 So.2d 875 (Fla.1982) [7 FLW 463], opinion filed October 7, 1982, pointed out that no “special word formula” is required to preserve for appellate review the trial court’s refusal to give a requested jury instruction. Hubbard held that the rule (Rule 3.390(d), Florida Rules of Criminal Procedure), does not require the use of the “magic words T object,’ ”

so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.

Hubbard v. State, 411 So.2d at 1314, 1315.

In Spurlock, the court also drew upon language from Thomas v. State, 419 So.2d 634 (Fla.1982), in holding that the contemporaneous objection rule is satisfied,

where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.

Thomas v. State, 419 So.2d at 636.

In the case before us we reject appellant’s contention that the trial judge was alerted to counsel’s request for the “Williams’ Rule” instruction by his pre-trial objections to collateral crime evidence and his general objections expressed at various times during the trial. Further, counsel’s motion for a mistrial during Radomski’s testimony about the 7-Eleven robbery, based on the court’s failure to order consolidation, clearly does not suffice. As above indicated, no objection of any nature was voiced during the testimony of the next witness, Davis, although both his and Ra-domski’s testimony unmistakably constituted “collateral crime” evidence. Had the rebuttal evidence ended at this point, we would have no hesitancy in finding a waiver of the special “Williams’ Rule” instruction. However, as shown by the portions of the record above quoted, during the testimony of the next three rebuttal witnesses defense counsel’s request graduated from the general — “... do you deny my request for an instruction ...,” and “I make ... the same request for an instruction ... ” — to the more specific “.. . I would move ... for a limited instruction based upon evidence of a collateral offense for which the defendant is not on trial.”

We would have difficulty in finding that counsel’s request for “an instruction,” without more, would satisfy the test of Spurlock, Thomas, and Hubbard. Counsel’s next request for “a limited instruction based upon evidence of collateral offense . . .is another matter. Because of the specificity of this request, and the trial judge’s response, we are compelled to view the matter in a different light. At this point our uncertainty as to whether the trial judge was adequately alerted as to the nature of the instruction being sought is dispelled by reference to what occurred later in the trial, at the jury charge conference. During this conference, the trial judge stated that he intended to give (from page 50, standard instructions), “the second half of WILLIAMS rule.” Defense counsel then reminded the judge of his objections during the course of the trial, and of his request that the court “give an instruction.” Whereupon, the trial judge responded:

THE COURT: I understand that, Mr. Williams, and I understand that you are not relinquishing any of your objections that you previously made as to instructing on the WILLIAMS rule during the course of the testimony.

Still further in the proceedings, at the hearing on motion for new trial, the judge commented:

THE COURT: * * *
... I, perhaps, should have given the instruction as to collateral offenses at the time they heard it. I have since thought about that on several occasions, frankly, but I think it was explained properly at the time I instructed the jury ....

Despite the ineptness of the language used by counsel in his several requests, upon viewing the record in its entirety we are compelled to hold that the issue was marginally preserved for appellate review. Under the strictures laid down by this court, and by the Florida Supreme Court in the cases above cited, we are compelled to hold that the failure to give the “Williams’ Rule” instruction during the course of the trial, at least as of the point where it was specifically requested, was reversible error. See, also, Skipper v. State, 420 So.2d 877 (Fla.1982). In so holding we note that the trial judge did not have the benefit of the more recent decisions to which we have referred.

We have not overlooked the fact that the cases relied upon here dealt primarily with Tascano violations. Tascano v. State, 393 So.2d 540 (Fla.1980). But we regard the reasons underlying the requirement of a special “Williams’ Rule” instruction just as compelling, if not more so, than for the Tascano instruction. Neither have we overlooked the state’s contention that at the point where the objection was adequately made the testimony being presented was not clearly “Williams’ Rule” evidence. We find the facts to be otherwise, since the testimony of the rebuttal witnesses we have identified above related unmistakably to appellant’s participation in three additional robberies on the same morning.

We have fully considered the remaining points and arguments for reversal raised in appellant’s brief. In view of our reversal on the first point, these will be only briefly touched upon for the guidance of the trial court and counsel upon retrial of the case.

No reversible error has been shown in the trial court’s denial of appellant’s requested jury instructions on the offenses of robbery with a deadly weapon, and robbery with a weapon. Revised standard jury instructions in criminal cases were approved by opinion filed April 16, 1981, modified June 5, 1981. See, In The Matter Of The Use By The Trial Courts, etc., Nos. 57,734, 58,799, (Fla. April 16, 1981), mod. no. 58,799, (Fla. June 5, 1981) (changing the effective date of the schedule of lesser included offenses to October 1, 1981). The new instructions are applicable in this case. Boston v. State, 411 So.2d 1345 (Fla. 1st DC A 1982); Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981). The appellant stipulated at the trial that he entered the store and committed the robbery with a shotgun. There was no evidence upon which to base a finding that the shotgun was not a firearm. Robbery with a deadly weapon and robbery with a weapon carry the same penalty as the offense charged. Each offense is a felony of the first degree. Section 812.13(1), (2)(a) and (b), Florida Statutes (1981). No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration. See, Comment On Schedule Of Lesser Included Offenses, Florida Standard Jury Instructions In Criminal Cases, page 257.

Appellant next complains of the trial judge’s refusal to allow Dr. Yates to testify as an expert witness as to the effect of alcohol and drugs on the human body and mind. Frankly, as to the circumstances existing in this particular case, we are unable to fully appreciate why Dr. Yates, a psychologist, was any less qualified to render an opinion as to appellant’s ability to form an intent than were Drs. Miller and Saul, both of whom are psychiatrists. Both psychiatrists based their opinion concerning appellant’s capacity to form the specific intent to deprive the victim of the money primarily upon what appellant told them. Neither psychiatrist had definite information concerning the exact chemical composition or quantities of the drugs and alcohol appellant had injected into his body or consumed. However, in view of our reversal on other grounds, no useful purpose would be served by our further discussion of this point. The trial judge has broad discretion in passing upon the qualifications of an expert witness. See, United States v. Bradley, 460 F.2d 529 (5th Cir.1972), cert. den., 409 U.S. 883, 93 S.Ct. 171, 34 L.Ed.2d 139 (1972); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975); Tully v. State, 69 Fla. 662, 68 So. 934 (1915). The trial judge also has broad discretion in ruling upon the admissibility of evidence generally, and in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed. Jent v. State, 408 So.2d 1024 (Fla.1981). The responsibility of determining the qualifications and range of subjects on which an expert witness may be allowed to testify rests with the trial court, and its rulings in this regard will not be disturbed on appeal absent a clear showing of abuse of discretion. Fotianos v. State, 329 So.2d 397 (Fla. 1st DCA 1976). No showing has been made that the testimony of Dr. Yates would have been any different in its import and effect than that given by Drs. Miller and Saul. As such, it would have been merely cumulative, and no reversible error has been shown in the exclusion of her testimony.

We view appellant’s contentions.regarding the trial court’s limitations upon Dr. Miller’s testimony, as well as other alleged limitations or restrictions upon appellant’s presentation of evidence during the trial, much in the same light as we have indicated with respect to the exclusion of Dr. Yates’ testimony. We agree with the trial court’s view that the defense of voluntary intoxication is limited in scope, and the evidence which may be presented is more confined and restrictive than for the defense of insanity. The appellant and his wife, as well as other witnesses, were allowed to cover various aspects of appellant’s life and character sufficient to “place” him in the minds of the jurors, and to disclose the difficulties that may have precipitated his sudden over-indulgence in alcohol and drugs. Thus, it appears that appellant was not prevented from presenting the essential facts upon which he sought to rely in support of his intoxication defense. A possible exception appears in the trial court’s limitation of Dr. Miller’s testimony, concerning the effect of drugs and alcohol, to a period of three days preceding the robbery offense. The mere fact, as Dr. Miller indicated, that ordinarily speaking, the effect of drugs or alcohol upon the human body would become essentially dissipated or eliminated within that period of time does not in itself preclude consideration, by a qualified expert, of the effect of taking alcohol or drugs over a longer period of time. The fixing of a specific period of time within which the taking of drugs or alcohol might have some significant effect upon the capacity to form criminal intent would itself be the subject of expert opinion, rather than a matter for determination by the trial court. Other than with respect to this particular point, appellant has failed to demonstrate any further infirmities in the trial court’s rulings that would merit consideration by this court.

Turning to another point, we fail to see how the several robberies were “related offenses” within Rule 3.151, Florida Rules of Criminal Procedure, so as to require their consolidation for trial upon appellant’s request. The several robberies occurred at different locations, involved different victims, and different witnesses. See, Paul v. State, 385 So.2d 1371 (Fla.1980). We further find no abuse of discretion in the trial court’s rulings with respect to alleged improper argument of the prosecuting attorney.

The judgment of conviction in case no. 81-8252 is REVERSED and REMANDED for a new trial. The judgment of conviction in case no. 81-8253, which was based upon appellant’s plea of nolo contendere with reservation of the right to appeal as to all issues raised with respect to case no. 81-8252, is REVERSED, and REMANDED for further proceedings.

ERVIN and SHIVERS, JJ., concur.


author: PER CURIAM. McCORD, Judge,

text:
    Lee Lewis MAISLER, Appellant, v. STATE of Florida, Appellee.
    No. AG-428.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 3, 1983.
    Charles G. Brackins of Meldon & Brac-kins, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant raises three issues on appeal, one of which he concedes is controlled by Murphy v. State, 413 So.2d 1268 (Fla. 1st DCA 1982). We have considered appellant’s contention that Florida’s legislative proscription on the private possession of cannabis is violative of Article I, Section 23 of the Florida Constitution, but conclude that no compelling argument has been made in support thereof and, accordingly, affirm the trial court’s denial of appellant’s motion to dismiss the information. Appellant’s third contention challenges the sufficiency of the circumstantial evidence to withstand a motion for judgment of acquittal made at the close of the State’s case. It is this contention which we consider below.

Appellant was charged by information with the unlawful manufacture of cannabis and possession of more than 20 grams of cannabis. An aerial view revealed cannabis plants growing in an area behind a trailer belonging to persons unknown. A warrant was secured to search the premises. On the authority of that warrant, Sheriff Leonard, Deputy Sheriff Maxwell and Deputy Sheriff St. John approached the trailer, which was occupied at the time of their arrival by a woman and small child. The woman, who was advised of the officers’ purpose, requested to make a phone call. That request was granted. The officers then proceeded to execute the warrant. Within 20 to 30 minutes of their arrival on the premises and during the search, appellant drove his car into the driveway, slammed the car door upon exiting, and directly entered the trailer without announcing his presence by knocking.

A total of 142 plants of cannabis was discovered on the property searched. One hundred ten plants, some of which were growing in cardboard-type containers, were found in a hothouse located less than 60 feet away from and directly behind the trailer. On a wood-chip walkway, which ran from the rear of the trailer to the hothouse, was a water hose attached to a spigot located in front of the hothouse. A bicycle was also discovered in the hothouse amongst the plants of cannabis.

A cleared dirt pathway into a wooded area ran along side the right side of and behind the trailer. The left side of that pathway was intersected at four intervals between 200 and 500 feet from the trailer with small branch trails upon which the remaining 32 cannabis plants were located. Those plants had initially been placed in cardboard containers similar to the ones found in the hothouse. The majority of the 32 cannabis plants were found within 40 to 70 feet from the main path. A water hose connected to a pump house located to the right of the trailer reached almost to the last branch trail.

While the officers were loading incriminating items found on the premises into a truck, appellant inquired as to why the water hose and his bicycle were being seized. Impressions of bicycle treads similar to the treads on the bicycle found in the hothouse had been discovered on the main pathway into the wooded area.

In order to convict an accused of constructive possession, the State must prove beyond a reasonable doubt that the accused had the ability to maintain control over the contraband and knowledge of its presence on the premises. These elements will be inferred if the premises are in the exclusive possession of the accused; however, if premises on which narcotic drugs are found are in the joint possession of the accused, then the accused’s knowledge of the presence of the drugs and ability to maintain control over same will not be inferred but must be established by proof. Such proof may consist of evidence of incriminating statements and circumstances from which the jury might lawfully infer the requisite knowledge and ability to maintain control. Brown v. State, 412 So.2d 420 (Fla. 4th DCA 1982); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). We conclude that the totality of the evidence presented was sufficient for a jury to reasonably infer that appellant had a pos-sessory interest in the property and was currently residing thereon, and that he had both knowledge of the presence of the cannabis on the premises and the ability to maintain control over same.

We recognize that in cases sought to be proved by circumstantial evidence, a special standard of review requires that the evidence must not only be consistent with guilt but also inconsistent with any reasonable hypothesis of innocence; however, as stated in Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974):

[T]he test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude. Vick v. United States, 216 F.2d 228 (5th Cir.1954). The jury is the pivotal point at which evidence is aimed, not the courts.

See also Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978). Applying that test to the facts of this case, we find that the issue of constructive possession was a question of fact properly submitted to the jury for deliberation. Accordingly, the judgments of conviction are affirmed.

BOOTH and WENTWORTH, JJ., concur.

McCORD, J., dissents with written opinion.

McCORD, Judge,

dissenting.

In my view, the circumstantial evidence, upon which the state based its case, was insufficient to sustain a verdict of guilt. The only evidence linking appellant to the cannabis was his action, upon arriving on the property, of slamming his car door and entering the trailer without knocking and his comment regarding the seizure of the bicycle and the water hose. As the majority has stated, in order to prove constructive possession, the state must show beyond a reasonable doubt that the accused had the ability to maintain control over the contraband and that he had knowledge of its presence on the premises. Although those elements may be inferred if the premises on which the contraband is found are in the exclusive possession of the accused, if the premises are found in the joint possession of the accused and another, the accused’s knowledge of the presence of the drugs and his ability to maintain control over them will not be inferred but must be established by proof. Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). When, as here, proof of knowledge and proof of control rests exclusively upon circumstantial evidence, that proof must not only be consistent with guilt but also must be inconsistent with any reasonable hypothesis of innocence. Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA, opinion filed December 1, 1982); Kickasola v. State, 405 So.2d 200 (Fla. 3rd DCA 1981); Peek v. State, 395 So.2d 492 (Fla.1980). Here, not only was there no direct proof or adequate circumstantial evidence to prove exclusive possession of appellant, but there was a lack of proof to show joint possession of appellant and the woman occupying the premises. There was nothing to show that he was anything other than a visitor to the premises. The state’s evidence falls short of proof that is inconsistent with any reasonable hypothesis of innocence. Therefore, I would reverse.

      . See, Jaramillo v. State, 417 So.2d 257 (Fla.1982); Ferguson v. State, 417 So.2d 631 (Fla.1982). We note, however, that the special treatment afforded circumstantial evidence has been eliminated from Florida’s Standard Jury Instructions in Criminal Cases on the basis that an instruction on reasonable doubt and burden of proof is sufficient.


author: McCORD, Judge. WENTWORTH, Judge,

text:
    Dale WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. AI-298.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 2, 1983.

      William K. Jennings of Jennings & Harrell, Fort Walton Beach, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from judgments and sentences adjudging appellant guilty of trafficking in methaqualone, possession of a firearm during the commission of a felony and three counts of sale or delivery of cannabis. Appellant has raised eight points on appeal. We reverse on Points I, III and IV and find no reversible error in the remainder.

Appellant raised the defense of entrapment to the charges. Under Point I, he contends that certain comments by the prosecuting attorney during closing argument were not supported by the evidence and were prejudicial; that the trial court committed reversible error in overruling his objection to them and in failing to grant his motion for mistrial. The comments were as follows:

Ladies and gentlemen, these officers were acting in nothing but good faith. They know there are drugs out there. It’s all over the place. It’s in the school yard, it’s in the playground, it’s in the homes — it doesn’t matter whether you or [sic] rich or poor, the drugs are out there. These officers know there is only one way to stop it and that is to go after the dealer. Ladies and gentlemen, Mr. Dale Wheeler is one of these people. He is one of these dealers. He is supplying the drugs that eventually get to the school yards and eventually get to the school grounds and eventually get into your own homes. He is one of the people who is supplying this. For him and people just like him_

There was no support in the record for such comments. The evidence did not show that drugs sold by the defendant eventually got to school grounds and “into your own homes.” The prosecutor’s statements to that effect, however, could have lead the jury to believe that the prosecutor had information outside the record that the drugs sold by the defendant were destined to the places mentioned. The reference to the jurors’ homes is in the nature of a “golden rule” argument. While we realize that the prevalence of illegal drugs could be considered a matter of common knowledge, and not improperly the subject of prosecu-torial comment, the specificity of the prosecutor’s remarks here goes beyond general comment and, being outside the record, was clearly prejudicial to appellant in the eyes of the jury. The court’s overruling of the objection compounded the prejudice. Compare Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); McMillian v. State, 409 So.2d 197 (Fla. 3rd DCA 1982); and Glassman v. State, 377 So.2d 208 (Fla. 3rd DCA 1979). Appellant’s motion for mistrial should have been granted.

Within Point III, appellant raises several points, only one of which we find to constitute reversible error. In his final argument to the jury, appellant’s counsel said:

The State has to prove beyond a reasonable doubt that the defendant was not entrapped. That is a heavy burden. Did the State prove that Dale was not entrapped? You think about that. That was their job. Did they carry their burden?

The prosecuting attorney objected to the foregoing statements and said, “I think that will be a misstatement of the law as the jury instructions give it.” The court then ruled as follows:

The Court is going to sustain the objection. I don’t think, Mr. Lindsay, that there is a statement in my proposed charge on entrapment requiring the State to prove that the defendant was not entrapped.

Appellant’s counsel, Mr. Lindsay, responded:

Your Honor, that comes from the fact that the State has to prove their case beyond a reasonable doubt.

The judge responded:

Yes, sir, but they don’t have to disprove an affirmative defense.

The trial court’s ruling was in error. The state has the burden of proving the defendant guilty to the exclusion of and beyond every reasonable doubt. The defendant has no burden of proof. We agree with the law on this subject in relation to entrapment as stated in Moody v. State, 359 So.2d 557 (Fla. 4th DCA 1978), adopting the federal rule as follows:

(1) [T]he defendant has the burden of adducing any evidence of entrapment; (2) the trial court determines the sufficiency of the evidence of entrapment; (3) if the evidence of entrapment is sufficient the jury must be instructed that the state has the burden of disproving entrapment beyond a reasonable doubt; and (4) the jury should never be instructed on the defendant’s burden of adducing evidence.

We recognize that the Fourth District Court of Appeal in Moody prefaced its adoption of the federal rule upon Florida Standard Jury Instruction (criminal) 2.11(e) which has been rewritten and changed to Instruction 3.04(c), and we further recognize that in such rewrite, that portion of the instruction which was under consideration in Moody has been deleted. As applied to the question here before us, we attach no significance to the change in the instruction as we believe the intent of the deletion was not to change the law stated in Moody but was to merely avoid undue emphasis as to the state’s burden of proof. The trial court’s previously quoted statement misled the jury to believe the state has no burden of proof in relation to an entrapment defense.

Under Point IV, appellant contends that the judgment, conviction and sentence for use of a firearm or the carrying of a concealed firearm during the course of a felony must be reversed because that crime depends on the validity of a conviction for an underlying felony. Since we must reverse the underlying felony convictions, we must also reverse the firearm conviction.

We certify to the Supreme Court of Florida under Article V, Section 3(b)(4), of the Constitution of the State of Florida that the following question which we have passed upon in this case is of great public importance:

When the defendant in a criminal case raises the defense of entrapment, where does the burden of proof lie?
Reversed and remanded for a new trial.

BOOTH, J., concurs.

WENTWORTH, J., concurs in part and dissents in part.

WENTWORTH, Judge,

dissenting in part and concurring.

I agree with the opinion except with respect to comments in closing argument, which do not appear to me to compel mistrial.

      . That portion states as follows:
      “The state must prove beyond a reasonable doubt that the defendant was not the victim of entrapment by law enforcement officers, and unless it has done so, you should find the defendant not guilty.”


author: BOOTH, Judge.

text:
    Nieda SANFORD, Appellant, v. ALACHUA COUNTY SCHOOL BOARD and Kemper Insurance Company, Appellees.
    No. AI-466.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 3, 1983.

      Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from an order of the deputy in a workers’ compensation proceeding denying lump sum advance payment of all permanent total disability benefits, based on the deputy’s finding that advance payment materially prejudices the employer/carrier. We reverse.

The facts are that Neida Sanford, a 62-year-old teacher with 16 years experience, fractured her hip in a fall on September 19, 1977. Dr. Moore performed a closed reduction of the hip fracture on the date of the accident, inserted a prosthesis in the hip on January 24, 1978, and finally replaced the entire hip joint on February 2, 1979. Claimant was accepted as permanently and totally disabled by the employer/carrier on June 28,1979, based upon Dr. Moore’s letter stating that she would be unable to return to work due to her hip injury and that she suffered a permanent impairment of 70 percent of her lower extremity. She was paid compensation at the rate of $119 per week.

In an attempt to become productive and to counteract the effects of inflation on the value of her workers’ compensation award, claimant submitted a request for an award of the commuted value of all future compensation. At a hearing before the deputy commissioner, her attorney introduced tables indicating a life expectancy of 21.5 years, resulting in a total payment of permanent total disability benefits in the amount of $89,678.84, after computation to present value at the four percent statutory discount rate. Claimant testified that she would invest the award in real estate rental property and presented evidence of her ability to manage such an investment. The employer/carrier cross-examined claimant’s witnesses but presented no testimony to rebut her evidence.

The deputy commissioner entered an award denying claimant’s request for lump sum advance payment because he found that it would materially prejudice the rights of the employer/carrier in two ways: (1) the statutory discount rate of four percent “in and of itself” would materially prejudice the rights of the employer/carrier as of the date of the hearing, and (2) advance payment would deprive the employer/carrier of the right to later challenge the claimant’s status as permanently totally disabled if she were to regain her earning capacity.

Section 440.20(ll)(d), Florida Statutes (1977) states that, when an application for an advance payment in excess of $2,000 is opposed by the employer or carrier, the deputy commissioner may order it paid if he finds that it is “for the best interest of the person entitled to compensation, will not materially prejudice the rights of the employer and carrier, and is reasonable under the circumstances of the case.” There has been no testimony that the lump sum payment is not in the best interests of the claimant; the employer/carrier has not rebutted her evidence of a sound, workable plan. Both parties agree that the payment of the lump sum will cost the carrier more than installment payments, due to the variance between the statutory discount rate and the interest rates presently available in the investment market. The issue is how these two factors are to be weighed in determining what is reasonable under the circumstances.

There is little case law in any jurisdiction concerning “material prejudice to the employer” or related concepts. No case has been cited to the court, and our research has disclosed hone, holding that the variance between the discount rate and the investment potential of the award has constituted “material prejudice” to the employer. We note that the workers’ compensation statute providing for lump sum payment has been seen as intended to enhance the value of benefits by giving the employee, rather than the employer/insurer, immediate use and control over the total amount, otherwise payable in installments. Umbreit v. Quality Tool, Inc., 225 N.W.2d 10, 302 Minn. 376 (1975).

This court is bound to enforce Section 440.20(10), Florida Statutes (1977), which provides for a four percent discount rate. The validity of that statute has not been challenged by the employer/carrier. The fact that the statutory discount rate is less than investment market interest rates is not a sufficient basis upon which to deny a lump sum advance payment to a claimant who is otherwise entitled to such an award. Were it so, no lump sum awards could be made in inflationary times. We therefore reverse the deputy’s finding that the statutory discount rate of four percent materially prejudices the rights of the employer/carrier.

The deputy also found that the granting of advance lump sum payment would materially prejudice the rights of the employer/carrier by “depriving them of the right to later challenge the claimant’s status as permanently totally disabled if she were to regain her earning capacity.” The chance of claimant regaining earning capacity is highly speculative given the facts that claimant is a 62-year-old woman with a significant anatomical loss due to hip joint replacement, who has been accepted as permanently totally disabled by the carrier since June of 1979 and has shown no improvement in her condition since that time. Furthermore, even were there a probability of claimant recovering earning capacity in the future, Section 440.20(10), Florida Statutes (1977), appears to preclude such a probability as a contingency consideration affecting either the amount or duration of compensation awarded. The statute provides that the probability of death of the person entitled to compensation, or remarriage of the surviving spouse, before the expiration of the compensation period, are contingencies to be considered or provided for in the award, but states that “the probability of the happening of any other contingency affecting the amount or duration of the compensation .. . shall be disregarded.”

The basis of the deputy’s denial of the lump sum advance payment was the finding that such an award would materially prejudice the employer/carrier, a finding which we reverse herewith. However, Section 440.20(ll)(d), Florida Statutes (1977), additionally requires the deputy to find that the award of lump sum payment would be in the best interest of the claimant and reasonable under the circumstances. The order of the deputy in this regard is ambiguous, and must be remanded for express determination of whether the best interest of the claimant would be served by the award of lump sum payment as required by Section 440.20(ll)(d), Florida Statutes. Accordingly, the order below is reversed and the cause remanded for the deputy’s determination on the record before him of the statutory requirements concerning the best interest of the claimant and the reasonableness of the award under the circumstances of the ease.

McCORD and WENTWORTH, JJ., concur.

      . In Court of Flags v. Outland, 382 So.2d 443 (Fla. 1st DCA 1980), this court ruled that a judge of industrial claims has broad discretion in determining whether to approve a lump sum advance but reversed that order because it involved an abuse of discretion. In a concurring opinion, Judge R. Smith noted (382 So.2d 443, 445):
      For reasons we cannot now recover, the 1935 legislature fixed the present value of Section 440.20(10) money at “4% true discount compounded annually;” and succeeding legislatures have left the rate unchanged. We must suppose, therefore, that the fluctuating value of money was not intended to be the predominant factor motivating a lump sum award. If the capacity of money to earn more in passive investments than the discount rate were reason enough to commute the periodic payments which are characteristic of the compensation system, then all awards to financially prudent claimants would be commuted in inflationary times. This cannot be.

        See also, Brevard County School Bd. v. Walters, 396 So.2d 1197 (Fla. 1st DCA 1981).

      . Order of the deputy dated December 2, 1981: I find that the claimant’s claim for advanced payment of the entire commuted value of all permanent total disability benefits to come due in the future should not be granted after giving “due consideration to the interest of all interested parties” as required by Section 440.20(10). I further find that the request for lump sum advance payment, if granted, would materially prejudice the rights of the employer and carrier. See Section 440.-20(1 l)(d).


text:
    FAIR-WAY RESTAURANT and Aetna Insurance Company, Appellants, v. Harold D. FAIR, Appellee.
    No. AL-177.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 8, 1983.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Vilareal & Banker, St. Peters-burg, for appellants.

      William D. Douglas of Hamilton & Douglas, Tampa, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from an order of the deputy commissioner in a workers’ compensation proceeding awarding temporary total disability benefits. Also at issue is the deputy’s inclusion of the value of meals provided claimant’s children in the calculation of the average weekly wage and his finding that claimant is permanently totally disabled (PTD), notwithstanding the employer/carrier’s stipulation to that fact before the hearing. We affirm in part and reverse in part.

On December 2, 1975, claimant Harold Fair fell at his restaurant, injuring his knee. Prior to the accident, he and his wife had operated the restaurant, claimant receiving $175 a week, his wife receiving no wages. Most of the meals for the family, which included six children, were provided by the restaurant. We affirm the deputy’s inclusion of the value of meals provided claimant’s children in his calculation of the average weekly wage, upon which benefits were based. See, Jess Parrish Memorial Hospital v. Ansell, 390 So.2d 1201 (Fla. 1st DCA 1980). Any benefit which helps an employee meet his personal expenses should be included in the calculation of average weekly wage. Layne Atlantic Company v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982). The ultimate test for determining whether a fringe benefit, such as meals, must be included is whether the employee receives a tangible benefit of a real, present-day value. State of Florida, Department of Health and Rehabilitative Services v. Ryan, 381 So.2d 269 (Fla. 1st DCA 1980). This court has held that the value of included meals must be based on their fair market value, determined in accordance with Internal Revenue Service regulations. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982).

The employer/carrier accepted claimant as PTD before the hearing and claims on appeal that this stipulation precluded the deputy commissioner from adjudicating claimant as PTD. Although this court’s opinion in Sperry Remington Office Machines v. Stelling, 383 So.2d 1150 (Fla. 1st DCA 1980), indicates that it is at least a “technical error” for the deputy commissioner to adjudicate claimant PTD where the employer/carrier has accepted him as PTD before the hearing, the language of the Florida Supreme Court in Andrews v. Strecker Body Builders, 92 So.2d 521 (Fla.1957), seems to imply that such stipulations by the employer/carrier do not deprive the deputy of jurisdiction, but that the inclusion in his order of such matters is within the discretion of the deputy. We therefore affirm the deputy commissioner’s adjudication of claimant as PTD.

Soon after claimant’s accident, his restaurant burned down. Claimant underwent two operations to remove torn medial meniscus from his knee and returned to work at his regular salary when a new restaurant was opened a year later in December, 1976. He continued to have problems with his knee. In October, 1977, Dr. Jones, a physician to whom claimant was referred, performed an arthrogram which was “non-diagnostic” and encouraged claimant to return to normal activities. In December, 1977, claimant’s wife “fired” him from his employment in the restaurant due to his inability to perform the work. Thereafter, claimant remained unemployed and, in February, 1979, filed a claim for temporary total disability benefits from the date of the accident.

In April, 1980, claimant’s attorney arranged for him to see Dr. Baker, who performed surgery to remove retained medial meniscus and declared claimant to have reached maximum medical improvement on October 10,1980, with a 40 percent disability. Benefits were paid from July 6,1980 to December 4, 1980, at which time the employer/carrier ceased payments because of a social security off-set. The deputy commissioner awarded claimant temporary total disability benefits from the date of the accident through November 30, 1976, and from January 1, 1978 through October 10, 1980, with credit for compensation paid during that period.

We find that the deputy’s award of temporary total disability benefits for the period from January 1, 1978 to July 5, 1980 was in error since it was based upon claimant’s testimony of pain and inability to work, without a work search or medical evidence that claimant was in fact totally disabled. In Ken Lones Landscaping v. Tucker, 395 So.2d 272, 274 (Fla. 1st DCA 1981), this court defined temporary total disability as “a period during which a claimant is totally incapacitated due to a com-pensable injury,” noting that there is no automatic entitlement to temporary total disability benefits until maximum medical improvement is reached, but that the ability to return to work, as opposed to the actual securing of employment, marks the termination of temporary total disability. In order to be entitled to temporary total disability benefits, the burden is on the claimant to show lack of capacity to work. A claimant who fails to produce medical evidence that he was unable to work and who does not test his ability to work by an adequate work search has failed to meet this burden. McKenney v. School Board of Palm Beach County, 408 So.2d 655 (Fla. 1st DCA 1981). While, in proper circumstances, temporary medical or functional disability may be proven by lay testimony, Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982), the case at issue does not come within the parameters of that rule.

Square G. Construction Company v. Grace, supra, involved an award of six-weeks temporary partial disability benefits based solely upon claimant’s testimony at the hearing that his medication made him drowsy and would prevent him from operating the heavy equipment used in his pre-accident job. The court noted that the work-search requirements of Exxon Company U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978), requiring good faith in testing work capability after medical release, is subject to qualification with respect to short periods or particular circumstances, including a claimant’s testimony as to physical symptoms involving ordinary evidentiary credibility standards.

At issue here is a two and one-half year period. None of the medical testimony supported claimant’s assertion that he was totally unable to work during that period of time; in fact, Dr. Jones encouraged him in 1978 to return to normal activity. For more than two years after seeing Dr. Jones, claimant did not seek medical treatment, nor did he make a good-faith attempt to return to work. His employment at the restaurant for one full year after the accident disproves his claim that he was totally unable to work. Since claimant has not met his burden of showing total inability to work during the period from January 1, 1978 through July 5, 1980, the deputy’s award of temporary total disability benefits for that period is in error.

'We affirm the deputy’s finding of permanent total disability and his inclusion of the value of meals provided claimant’s children in his calculation of the average weekly wage, but reverse the award of temporary total disability benefits for the period from January 1, 1978 through July 5, 1980 and remand for further proceedings consistent herewith. See, Duro Paper bag Manufacturing Company v. Graham, 415 So.2d 809 (Fla. 1st DCA 1982), and State of Florida, Sunland Center v. Campbell, 417 So.2d 1156 (Fla. 1st DCA 1982).

McCORD and WENTWORTH, JJ., concur.

      . In Square G. Construction Company v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982), the court distinguished: Commercial Carrier Corporation v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981), in which a claimant’s bare complaints were dismissed as insufficient to excuse lack of work effort, by the fact that it involved a six-month period after the claimant’s release for work, without evidence that he had sought either further medical attention or a return to employment; Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981), by the fact that there the claimant failed to follow recommendations by three treating physicians that he should attempt to return to work; Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981), by the fact that it involved an 18-month period after discharge, without evidence of any effort by the claimant to seek employment or medical attention during that period.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Petitioner, v. Virgil HARRIS, Respondent.
    No. 80-1599.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 2, 1983.

      Jim Smith, Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., for petitioner.
    Alan E. Weinstein, Miami Beach, for respondent.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The State of Florida has petitioned this court to review by certiorari and quash an order of the trial court which granted use immunity to three potential witnesses for the respondent, Harris. It contends that the trial court has acted in excess of its jurisdiction and that the order does not conform to the essential requirements of law.

The facts giving rise to the questioned order are not in dispute. Virgil Harris and a co-defendant, Eric Parker, were charged in a five-count indictment with armed robbery with a firearm, attempted armed robbery with a firearm, attempted murder in the first degree, shooting into an occupied dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Harris’ counsel filed a witness list containing, inter alia, the names of Parker, who had by then pleaded guilty to the charges and was sentenced thereon, Gregory Howard and Roderick Straughn.

The three prospective defense witnesses were subpoenaed for deposition by the State. The prosecutor notified their respective counsel that the State would not depose the witnesses unless they waived immunity. The witnesses refused to waive immunity, the State refused to grant it, and the depositions were not taken. Thereafter, each of the putative witnesses stated that if called as a witness at trial, he would invoke his privilege against self-incrimination and would not testify unless assured that his testimony could not thereafter be used against him.

Hams’ counsel, asserting that these three potential defense witnesses would testify (provided that their testimony was not used against them) that the three of them committed the crimes with which Harris was charged and that Harris was not a participant, moved the court to grant the witnesses use immunity. The court granted the motion.

At the outset, it is important to note the distinction between use immunity, which the trial court ordered, and transactional immunity, which it did not. The former simply forbids the testimony given under the immunity grant to be used against the witness in any criminal prosecution of him; the latter provides the witness with immunity from prosecution for the matter concerning which his testimony was elicited. State ex rel. Hough v. Popper, 287 So.2d 282 (Fla.1973); Alford v. Cornelius, 380 So.2d 1183 (Fla. 5th DCA 1980); State v. Toogood, 349 So.2d 1203 (Fla. 2d DCA 1977). It is abundantly clear that a court of this state is powerless to provide a witness with transactional immunity over the State’s objection: first, because transactional immunity is a creature of a statute, State v. Schroeder, 112 So.2d 257 (Fla.1959); Stancel v. Schultz, 226 So.2d 456 (Fla. 2d DCA 1969); but see Ingrain v. Prescott, 111 Fla. 320, 149 So. 369 (1933); Gilliam v. State, 267 So.2d 658 (Fla. 2d DCA 1972), the exclusive purpose of which is to aid the State in the prosecution of crimes, Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); State v. Schell, 222 So.2d 757 (Fla. 2d DCA 1969); and second, because court-ordered transactional immunity over the State’s objection interferes with the State’s prosecutorial prerogative, thereby violating the constitutional doctrine of the separation of powers between the judicial and executive branches of government. Cf. Cleveland v. State, 417 So.2d 653 (Fla.1982) (court may not override prosecutor’s refusal to consent to pretrial diversion of defendant, essentially a conditional decision not to prosecute); State v. Brown, 416 So.2d 1258 (Fla. 4th DCA 1982) (court may not dismiss information based on victim’s expressed desire not to prosecute in face of prosecutor’s desire that prosecution go forward); State v. Jogan, 388 So.2d 322 (Fla. 3d DCA 1980) (trial court may not dismiss information conditioned on defendant enlisting in military where State desires to prosecute).

The question of whether a court is authorized to order that a prospective defense witness be given use immunity in exchange for his testimony is not as readily answered. While use immunity may arguably hinder some future prosecution of the witness, it does not, ipso facto, prevent the prosecution from proceeding; thus, it is neither so obviously precluded by the immunity statute, nor so obviously in violation of the doctrine of separation of powers.

There is, as the State correctly points out, an impressive amount of authority holding that a court is simply not empowered to grant use immunity to defense witnesses, see, e.g., United States v. Heldt, 668 F.2d 1238,1282 (D.C.Cir.1981) (“the power to apply to the court for use immunity is confined to the government”); United States v. Beasley, 550 F.2d 261 (5th Cir.1977) (court without power to require defense witness to testify about matters for which witness had right to claim Fifth Amendment privilege); In re Daley, 549 F.2d 469 (7th Cir.1976) (a federal court is not empowered to prescribe immunity on its own initiative, since to recognize such power would be to contradict long-held beliefs as to governmental separation of powers); In re Darrell T., 90 Cal.App.3d 325, 153 Cal.Rptr. 261, 266 (1979) (“The issue of immunity is a prosecutorial prerogative as to which the defense has no right to attempt to have granted to witnesses.”); State v. Matson, 22 Wash.App. 114, 587 P.2d 540 (1978) (grant of immunity a prosecutorial tool; no comparable right in the defendant); State v. Linsky, 117 N.H. 866, 379 A.2d 813 (1977) (trial court neither has the power to grant immunity on its own, nor to require the government to seek immunity for defense witnesses); State v. Simms, 170 Conn. 206, 365 A.2d 821 (1976); People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410 (1976). On the other hand, there is substantial authority recognizing that under extraordinary circumstances, not found to exist in these cases, a court might be empowered to grant a defense witness immunity where to deny immunity would be to violate the defendant’s due process right to a fair trial. United States v. Chagra, 669 F.2d 241 (5th Cir.1982); United States v. Turkish, 623 F.2d 769 (2d Cir.1980); United States v. Praetorius, 622 F.2d 1054 (2d Cir.1980); United States v. Lenz, 616 F.2d 960 (6th Cir.1980); United States v. Klauber, 611 F.2d 512 (4th Cir.1979); United States v. Herman, 589 F.2d 1191 (3d Cir.1978); United States v. Alessio, 528 F.2d 1079 (9th Cir.1976); United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir.1974). But only a single appellate court has actually found the “extraordinary circumstance” and ordered the government to confer use immunity on a defense witness or suffer an acquittal. See United States v. Morrison, 535 F.2d 223 (3d Cir.1976). The respondent, however, can take little comfort in Morrison, in which the government, after previously showing no interest in prosecuting a potential witness, threatened prosecution after the witness decided to testify for the defendant. No such prosecutorial abuse can be found in the present case.

Harris must, and does, place his greatest reliance on Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980), which, apart from reaffirming the Morrison rule that a deliberate attempt by the government to disrupt the fact-finding process should be met with a grant of use immunity to a defense witness, stands alone in announcing that:

“In addition, even if there is no evidence of such prosecutorial misconduct, when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity, the court should grant judicial immunity to the witness in order to vindicate the defendant’s constitutional right to a fair trial.” Id. at 974.

But even as we need not decide if a court may grant immunity when it finds government abuse, because no abuse has occurred here, we need not decide if a court may grant immunity on the lesser showing required by the Third Circuit in Smith, because the testimony which Harris seeks is, as will be seen, available without a grant of immunity, making other unavailable testimony not essential to the respondent.

We return to the facts of this case. The defendant sought use immunity for three witnesses, each of whom purportedly would implicate himself in the crimes and exonerate the defendant. Recall, however, that one of these witnesses, Eric Parker, had been charged as a co-defendant with Harris and had pleaded guilty to and been sentenced on the charges. Under these circumstances, it is evident that Parker could no longer invoke the privilege against self-incrimination in respect to these crimes. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969); Dearing v. State, 388 So.2d 296 (Fla. 3d DCA 1980); Clark v. State, 317 So.2d 870 (Fla. 1st DCA 1975). See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963); United States v. Sanchez, 459 F.2d 100 (2d Cir.1972); United States v. Romero, 249 F.2d 371 (2d Cir.1957). That being the case, Parker is available to the defendant as a witness without the need for a grant of immunity, and the testimony of Howard and Straughn, being cumulative to Parker’s, becomes nonessential. Thus, the defendant’s due process right to a fair trial can be amply accommodated without the need for a grant of use immunity to any of these witnesses. See United States v. Turkish, supra (no need for immunity where witness’s testimony cumulative); United States v. Klauber, supra (no need for immunity if evidence otherwise available); United States v. Alessio, supra (no need for immunity where witness’s testimony cumulative).

Accordingly, the State’s petition for writ of certiorari is granted, and the order of the trial court granting use immunity to Eric Parker, Gregory Howard and Roderick Straughn is quashed.

      . The operative portion of the trial court’s order reads:
      “ORDERED and ADJUDGED that the Defendant’s Motion to Grant Potential Defense Witnesses Use Immunity be and the same is hereby granted. ERIC PARKER, GREGORY HOWARD and RODERICK STRAUGHN are each granted use immunity by this Court for the truthful testimony given by them on behalf of the defendant in the instant case. Such testimony shall not subsequently be used against any of the individuals in a criminal prosecution, except in the event of a prosecution for perjury arising out of the said testimony.”

      . As a federal constitutional matter, it is only necessary that a witness be given use immunity in order to compel his testimony. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977).

      . As the State’s petition notes: “While the government remains theoretically free to prosecute an individual granted use immunity, it can do so only if it satisfies the heavy burden, imposed by the Constitution, of proving affirmatively that the evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. Kastigar v. United States, supra.”

      .The State argues, however, that although the trial court’s order purports to grant use immunity only, a witness who is compelled to testify by court order will by virtue of the immunity statute, § 914.04, Fla.Stat. (1979), automatically receive transactional immunity. This argument may overlook that the witness is not necessarily being called pursuant to Section 914.04, compare Stancel v. Schultz, supra, with Gilliam v. State, supra, or that even if transactional immunity could result, the witness could, through his knowing acceptance of use immunity, waive some greater protection. However, we need not decide the merits of the State’s argument in this case.

      . The holding in Earl v. United States, 361 F.2d 531 (D.C.Cir.1966), that immunity for a defense witness is absolutely unavailable is inapposite, since the immunity referred to there is transactional.

      . In Moody v. State, 418 So.2d 989 (Fla.1982), the court, without citation of authority, held that Moody was not “denied due process of law by the prosecutor’s failure to give Bassett immunity.” Id. at 992. Although it is far from clear, presumably Moody hoped to elicit from Bassett that (a) Bassett killed her mother shortly after the killing with which Moody was charged and in which Bassett was at least peripherally involved, and (b) Bassett, not Moody, committed the murder for which Moody was convicted. The case might be said to implicitly recognize that under certain circumstances, due process might require some form of immunity for a defense witness..

      . In State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981), we held that it was manifestly inappropriate to dismiss an information when two purported defense witnesses invoked their privilege against self-incrimination. Finding no suggestion of prosecutorial abuse, we expressly declined to intimate a view whether the trial court could have granted these witnesses immunity had such abuse been present. Id. at 243 n. 2.

      . In United States v. Thevis, 665 F.2d 616 (5th Cir.1982), the court, finding no prosecutorial abuse, refused to decide whether it was empowered to grant immunity where such abuse is found. The court did, however, reject outright the Third Circuit’s thesis in Smith that a court may grant immunity simply because the defense witness has essential exculpatory information unavailable from other sources. We need not go even that far.

      . The defendant’s position that Parker may invoke the privilege against self-incrimination to protect against untruthful statements he may make in Harris’ trial is totally without merit. The Florida Bar v. Doe, 384 So.2d 30 (Fla.1980). Moreover, since Parker’s prior statements concerning his role in this affair given at the time of his guilty plea were riot given under a grant of immunity, they may be used as prior inconsistent statements in any perjury prosecution of Parker. Cf. The Florida Bar v. Doe, supra.


author: PER CURIAM.

text:
    Nicholas A. STELLA, as personal representative of the estate of Cynthia Lee Stella, deceased, etc., et al., Appellants, v. Terrence M. ASH, D.C., Appellee.
    No. 80-2335.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 2, 1983.

      Horton, Perse & Ginsberg and Edward A. Perse, Carroll, Halberg & Meyerson, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLe-more, Miami, for appellee.
    Before BASKIN and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The trial court, finding that the appellants’ wrongful death action was limitations-barred under Section 95.11(4)(b), Florida Statutes (1979), entered summary judgment for Dr. Ash. We reverse upon holdings that (1) a wrongful death action, when, as here, brought within two years from the time of death of the injured party, is not limitations-barred, Perkins v. Variety Children’s Hospital, 413 So.2d 760 (Fla. 3d DCA 1982); see also Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982); and (2) even if, arguendo, the action were required to be brought within two years from the time the incident giving rise to the action was discovered or should have been discovered with the exercise of due diligence, the fact that Mrs. Stella’s malignancy was correctly diagnosed two years and several days prior to the commencement of the action does not conclusively establish as a matter of law that she then should have known that Dr. Ash misdiagnosed her condition in 1975, since Mrs. Stella’s knowledge of her true condition is but a factor among others in evaluating whether she should have discovered the defendant’s asserted malpractice. Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Schalm v. Mount Clemens General Hospital, 82 Mich.App. 669, 267 N.W.2d 479 (1978).

Reversed and remanded.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    George C. MORELLA and Helen M. Strub, as Personal Representatives for and on behalf of Helen M. Strub, beneficiary and survivor of the Estate of Gregory C. Morella, Appellant/Cross-appellee, v. James BROWN and Sentry Insurance Company, Appellees/Cross-appellants.
    No. 81-157.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 31, 1983.

      David L. Kahn of Kahn & Gustafson, Fort Lauderdale, for appellant/cross-appel-lee.
    R. Benjamine Reid of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, P.A., Miami, for appellees/cross-appellants.
   SCHWARTZ, ALAN R., Associate Judge.

This appeal and cross-appeal arise out of a wrongful death action in which George C. Morelia and Helen M. Strub (formerly Helen M. Morelia) sued to recover for the death of their son, Gregory C. Morelia. A jury trial resulted in an award of $75,000 to the father and $25,000 to the mother. He accepted his award but she has perfected this appeal. We reverse for a new trial because of the trial judge’s incorrect refusal to allow a psychiatrist to testify on the mother’s behalf.

Gregory was killed in an accident in 1974; the case was tried in 1980. Approximately thirty days prior to trial, appellant paid two hour-long visits to a psychiatrist. He talked with her, but made no physical examination, reviewed no medical records, prescribed no medicine or other treatment and had no further appointments to see her. The defendants objected to the psychiatrist’s proferred testimony on the ground that, as one who was clearly only an “examining,” as opposed to a “treating,” physi-cían, he could not base an expert opinion, as was required in the circumstances, solely upon the statements and history related by the plaintiff. E.g., Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961). We hold that, because the rule of inadmissibility relied upon below does not apply to mental health practitioners, the trial court’s acceptance of this position was erroneous.

A decision of one of our sibling courts directly supports this conclusion. In Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978), it was said:

Defendants’ fourth argument challenges the correctness of the trial court’s ruling which allowed a psychiatrist to testify as to Truman’s mental condition. The assertion that defendants were not timely notified of plaintiffs’ intention to call the doctor as a witness is refuted by the record. The contention that the doctor’s testimony was inadmissible because he was an examining physician and not a treating physician is governed by this court’s decision in Steiger v. Massachusetts Casualty Insurance Company, 253 So.2d 882 (Fla. 3d DCA 1971), which held that the testimony of a psychiatrist is admissible when based on his own examination of the patient and his expertise in psychiatry. Therefore this argument, too, is without merit.

358 So.2d at 1383. Thus Quinn is firm authority that the supposed treating-examining dichotomy is inapplicable to the field of mental illness. Even if Quinn did not exist, however, we believe that the same conclusion is required by the logic of the other decided cases in the area. It is well-established in Florida and elsewhere that even a non-treating physician may base his opinions upon a medical “examination” of the patient. E.g., Marine Exploration Co. v. McCoy, 308 So.2d 43 (Fla. 3d DCA 1975); Raydel, Ltd. v. Medcalfe, 162 So.2d 910 (Fla. 3d DCA 1964), quashed on other grounds, 178 So.2d 569 (Fla.1965); North American Accident Ins. Co. v. Burkett, 281 P.2d 434 (Okl.1955). Since mental dysfunctions are neither visible nor palpable, the only way in which a psychiatrist can conduct such an examination is to listen to and, in the light of the doctor’s expertise, critically evaluate what the patient says is disturbing him. To hold that because this process sounds very much like giving an ordinary “history” which, under the law, cannot form the basis of an examiner’s opinion concerning the extent of injury— even though no other process is possible in the context of the psychiatrist’s work — is impermissibly to allow the verbal form of a legal construct to control over the realities of the particular situation. Many decisions, including those in jurisdictions which generally follow the Florida rule, have recognized that this is the case by specifically permitting examining psychiatrists and psychologists to testify on the basis of their patients’ verbalized complaints. E.g., Bevevino v. Saydjari, 574 F.2d 676 (2d Cir.1978); Kaufman v. Kaufman, 82 App.D.C. 397, 164 F.2d 519 (D.C.Cir.1947); United States v. Roberts, 62 F.2d 594 (10th Cir.1932); Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556 (1982); Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966); Tramutola v. Bortone, 63 N.J. 9, 304 A.2d 197 (1973). We now do so as well.

The defendants have cross appealed the trial court’s reinstatement of the case after it had been dismissed for lack of prosecution. Our review of the record convinces us that no reversible error has been demonstrated in this regard.

Accordingly, the judgment appealed from is reversed for a new trial on the issue of the mother’s damages alone.

DOWNEY and DELL, JJ., concur.

      . That the Steiger case may have been misinterpreted does not detract from the actual holding of Quinn.

      . It is not insignificant to our consideration of this issue that under the Florida Evidence Code, Sec. 90.803(4), Fla.Stat. (1981), this always unsatisfactory distinction no longer exists. See Ehrhardt, 5 West’s Florida Practice, Florida Evidence § 803.04 (1977) (“[T]he drafters of the Code felt that the distinction between treating and examining physicians is no longer tenable and therefore eliminated it.”) While the code became effective subsequent to the trial in this case, we should not ignore the legislative decision it embodies in judicially resolving the identical question. See Dade County Medical Association v. Hlis, 372 So.2d 117, 119 (Fla. 3d DCA 1979), followed in Good Samaritan Hospital Ass’n., Inc. v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979) and Auld v. Holly, 418 So.2d 1020 (Fla. 4th DCA 1982).

      . No court which has been directly faced with the issue seems to have ruled otherwise.

      . This ruling makes it unnecessary to consider the appellant’s other points.