author: THOMPSON, Judge.

text:
    Jerry Lynn ABBOTT, Appellant, v. STATE of Florida, Appellee.
    No. AK-386.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Rehearing Denied Nov. 15, 1982.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appel-lee.
   THOMPSON, Judge.

The appellant pled guilty to charges of armed robbery and kidnapping, and was sentenced to 60 years imprisonment on the former count and to a consecutive 30-year term of probation on the latter. He appeals the trial court’s retention of jurisdiction, pursuant to § 947.16(3), Fla.Stat., over the first one-third of his sentence for the armed robbery. Appellant argues, inter alia, that even though the trial judge did state on the record his reasons for retaining jurisdiction, the statement of reasons given was legally insufficient. We agree and reverse.

In stating his ground for retaining jurisdiction, the trial judge simply referred to the “circumstances surrounding the particular incidents ... the nature of both offenses ... the seriousness of the offenses . . . and the gravity of the offenses . ..,” without citing any of the facts or circumstances of the crimes. This statement does not satisfy the requirement of § 947.-16(3)(a) that justification for retention of jurisdiction be stated with individual particularity. Although the trial judge included in his statement somewhat more specific references to “the conditions under which the victim was submitted” and “the losses to the victim,” here, again, there was no statement as to what was done to the victim or what his losses were.

Because we find that the trial court’s statement of justification for retention of jurisdiction fails to satisfy the statutory requirement of specificity and particularity, we need not consider appellant’s remaining arguments. This case is remanded with instructions to the trial court to either relinquish retention of jurisdiction or to enter an order setting out the particular facts and circumstances of the crime, or the particular characteristics and propensities of the appellant, which justify a retention of jurisdiction.

ROBERT P. SMITH, Jr., C.J., and MILLS, J., concur.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Chief Judge.

license: Public Domain

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. J.W.A., a/k/a J.W.S., a minor child, Appellee.
    No. AI-244.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Jon W. Searcy, District One Legal Counsel, Dept, of Health and Rehabilitative Services, Pensacola, for appellant.
    Charles A. Wade, Crestview, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

We have carefully examined the entire record of this case, in which the circuit court finally denied a Department of Health and Rehabilitative Services petition to declare an abused child dependent, sections 39.40, et seq., Florida Statutes (1981), and granted the petition by the half-brother of the infant’s unmarried 16-year-old mother, and his wife, to adopt the child. Chapter 63, Florida Statutes (1981). We have considered all of the Department’s arguments on appeal.

The child unquestionably was dependent on account of abuse by his custodian when the Department’s petition was filed, and the court unaccountably delayed ruling on the petition for two years. Section 39.-408(l)(a), Florida Statutes (1981). But responsibility for that delay must be shared by the Department, so it would seem from a record revealing no vigorous efforts to secure an earlier ruling. We are aware of the adoptive mother’s responsibility for the abuse and of the seeming incongruity of judicial proceedings later granting her adoption of the child.

We are aware, too, of the false affidavits submitted in Dale County, Alabama; that a Florida judge was forced to recuse himself by improper contacts from a relative of the adoptive father; and that the parent-child bonding by the adoptive mother was accomplished while the unattended dependency petition grew stale, and while the child was in the nominal custody of another relative who used her court appointment as surrogate for the same person, now the adoptive mother, whose prior abuse disqualified her to be formal custodian during these protracted proceedings.

Finally, we are aware that the Department was not directed to supervise the child, before the adoptive order was entered, in the care of the adoptive parents. Though section 63.122(1) would appear to require that supervision, the Department’s Rule IOC-12.31, Fla.Admin.Code, construes the statute as not requiring it when the custodian is a relative within the third degree, except by court order. The circuit court’s oral admonition to the adoptive mother, its continuing powers under section 39.41, and its order for Department supervision pending appeal would appear to suffice.

We disapprove the haphazard treatment of the dependency petition for two years in which, as it turned out, the person responsible for the abuse, and for the child’s dependency, was bonding the child to herself. Compare the same court’s neglect of other statutes governing child placement, and the Department’s statutory role, in Department of Health and Rehabilitative Services v. The Lasky Baby, 416 So.2d 1148 (Fla. 1st DCA 1982).

Yet we cannot say as a matter of law that the adoption order was erroneous when entered, or that another disposition is required now as a matter of law. The child’s welfare being the ultimate consideration, there is evidence and reason to expect and believe that by this order the child’s most unfortunate beginning in life has taken a hopeful turn in the care of loving parents.

AFFIRMED.

MILLS and THOMPSON, JJ., concur.


author: MILLS, Judge.

text:
    Clifford WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AN-128.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1982.
    Rehearing Denied Nov. 18, 1982.
    Clifford Williams, Jr., pro se.
    No appearance for appellee.
   MILLS, Judge.

Williams appeals the trial court’s summary denial of his motion for post-conviction relief. We affirm.

The first two issues raised by Williams were previously raised on direct appeal and cannot form the basis for collateral attack. Williams v. State, 386 So.2d 538 (Fla.1980). The third issue is without merit because newly discovered evidence may not be raised in a Rule 3.850 motion, but may only be raised by petition for writ of coram nobis to the appellate court which originally affirmed the conviction. Hallman v. State, 371 So.2d 482 (Fla.1979).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    In re Anthony C. SEPE. Eugenia DOUGLASS, Appellant, v. Anthony C. SEPE and Ruth DiPietro, Appellees.
    Nos. 81-2123, 81-2613.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bailey & Dawes and Henry J. Whelchel, Miami, for appellant.
    Richard Touby, Miami, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial court adjudicated Anthony C. Sepe physically incompetent. The central issue on this appeal is whether the trial court, having adjudicated Anthony C. Sepe physically incompetent, erred in failing to appoint a guardian of the person. The appellant, the only child of the 87-year-old Mr. Sepe, urges that such an appointment is mandatory. We agree.

Section 744.331(9), Florida Statutes (1981), provides:

“When a person is adjudicated mentally or physically incompetent, a guardian of the person shall be appointed, and a guardian of the property may be appointed.” (emphasis supplied).

Were the legislative intent not already clear from the juxtaposition of the mandatory “shall” and the permissive “may” in the statute, any doubt about its intent is set to rest when we note that the language of the predecessor statute, Section 744.331(9), Florida Statutes (1975), provided for permissive appointment only:

“After adjudication of incompetency, a guardian of either the person or the property, or both, of the person [sic] may be appointed.”

The appellee argues, however, that Section 744.344, Florida Statutes (1981), invests discretion in the court. That section reads:

“If the court finds that the person ... is incompetent, it shall appoint a guardian of the person or of the property, or both, as it may deem necessary.”

While the appellee is correct in his conclusion that Section 744.344 makes the appointment discretionary, the conflict between the mandatory language of Section 744.331(9) and the discretionary language of Section 744.344 must be resolved by giving precedence to Section 744.331(9). This is so because Section 744.331(9) in its present form was enacted in 1977, see Ch. 77-328 § 4, Laws of Florida, some three years after the enactment of Section 744.344. It is a well-settled rule of statutory construction that the last expression of the legislative will is the law, and in case of conflicting provisions in the same statute or different statutes, the last in point of time prevails. Williams v. Hartford Accident and Indemnity Company, 382 So.2d 1216 (Fla.1980); Albury v. City of Jacksonville Beach, 295 So.2d 297 (Fla.1974); Overstreet v. Ty-Tan, Inc., 48 So.2d 158 (Fla.1950); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946);. Cable-Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1975).

Accordingly, we hold that the trial court erred in failing to appoint a guardian of the person of Mr. Sepe in accordance with the dictates of Section 744.331(9), Florida Statutes (1981). Our holding makes it unnecessary to determine whether the evidence before the trial court required it to also adjudicate Mr. Sepe mentally incompetent. Lastly, we find no error in the trial court appointing a guardian ad litem to represent Mr. Sepe for the purposes of this appeal.

Affirmed in part; reversed in part, and remanded with directions to appoint a guardian of the person of Mr. Sepe.


text:
    Gordon DI BATTISTO and Nina Di Battisto, Appellants, v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, Appellee.
    No. 81-2721.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Rehearing Denied Nov. 17, 1982.
    Hubert G. Roberts, Hialeah, for appellants.
    Urich & Shenkman and Robert Urich, Miami, for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The question for determination is whether silver household flatware is an “article containing ... silver” as the term is used in a Homeowner’s Insurance Policy clause to limit recovery in the event of loss.

The applicable clause in its entirety provides:

Metropolitan’s liability shall be subject to the following limits per occurrence:
% :fs * sf* * sfc
4. $1,000 in the aggregate for loss by theft of articles of jewelry, watches, necklaces, bracelets, gems, articles containing gold, silver, or platinum, furs, articles containing fur which represents its principal value, and cameras, and camera equipment, but not exceeding $500 for any one such article.

The trial court correctly construed the policy provision as applicable to silverware. Appellant contends the court’s interpretation is “stifling” and ignores the parties’s intent.

The principal value of silver household flatware derives from its intrinsic quality as precious metal, unlike the television set (appellant’s example), principal value of which derives from its function; a television set would not come within the loss-limit provision of the policy even though its components may contain small quantities of silver. Cf. Norman C. Jensen, Inc. v. United States, 490 F.Supp. 497 (Cust.1980) (for tax purposes “stamps” which consisted of 23 karat gold strips which were not issued by any governmental authority properly classified as “articles of gold”).

Affirmed.


author: DAUKSCH, Judge. SHARP, Judge,

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Crawford and Company, Inc., Appellants, v. Imogene McCONKEY, Florida Farm Bureau Mutual Insurance Company and Clayton La Roche, Appellees.
    No. 81-1602.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1982.
    C. Anthony Schoder, Jr., Daytona Beach, for appellants.
    Terrill J. LaRue, of LaRue & Bernardini, P.A., Daytona Beach, for appellees.
   DAUKSCH, Judge.

This is an appeal from an order entered upon a motion for equitable distribution in a personal injury suit. The plaintiff’s worker’s compensation carrier seeks to recover from its payee, the plaintiff, all benefits paid by the carrier in accordance with section 440.39(3)(a), Florida Statutes (1978).

That statute permits a worker’s compensation carrier to obtain a lien upon a judgment in a personal injury suit to the full extent of the already paid and future benefits the carrier must pay to the plaintiff under the Worker’s Compensation law. The statute contains a proviso that limits the amount of the carrier’s lien if the plaintiff/employee can establish she has not recovered from the tortfeasor the full value of damages she sustained. This would occur in a case in which a plaintiff does not recover from the tortfeasor the full measure of damages either because of comparative negligence or the limits of insurance coverage were less than the total damages or the damages are uncollectible, in whole or part.

In this case Imogene McConkey was injured when Clayton LaRoche drove his car into the rear of her car. She suffered damages greatly in excess of what LaRoche could pay. The trial judge found she suffered $400,000.00 in damages and LaRoche had no money or assets except a $25,000.00 insurance policy. Included within the $400,000.00 figure is an amount for pain and suffering.

The trial court properly conducted a hearing where it was established that the plaintiff’s net recovery after the costs and attorney’s fees were deducted was $18,000.00. The worker’s compensation carrier had paid $37,730.00 in benefits and expected to pay future benefits of $150,444.00 plus an undetermined amount of future medical expenses. The court found that the future benefits figure, as best as could be approximated, should be $158,500.00.

So, to recapitulate, the figures are:

1. Amount paid by tortfeasor = $ 25,000.00
2. Actually received = $ 18,000.00
3. Percentage of recovery actually received = 72%
4. Actual damages = • $400,000.00
5. To be paid by carrier = $196,230.00

As we determined in Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982) and as the Fourth District Court of Appeal held in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), a formula can be used to fairly calculate what is due an employer/carrier from an employee/plaintiff in equitable distribution of the proceeds obtained from the third party tortfeasor/defendant.

The pro rata share of the employer or insurance carrier may then be , properly calculated by the following formula: (percentage of recovery actually received by employee) X (actual recovery as reduced from full value of damages sustained because of comparative negligence or because of limits on insurance coverage and collectibility/full value of damages sustained) X amount paid and future benefits to be paid by employer or carrier = equitable distribution due to employer or carrier.
National Ben Franklin Insurance Company v. Hall, Id. at 1270,

A fair and evenhanded manner in which to handle all equitable distribution cases is to do so by a mathematical formula. Perhaps no subject in the law can be decided by a formula in all cases and always reach the most fair and equitable result. For that reason we are hesitant to say this formula is absolute and must always be applied; but we now hold that unless some overriding reason can be articulated for not applying this formula then it should be applied in all equitable distribution cases under the worker’s compensation law. Should the trial court determine an overriding reason for not applying the formula then such should clearly appear on the record and be set out in the order.

Applying the formula to the figures in this case we find the following result:

The second factor is computed as follows:
(actual recovery as reduced from)
(full value of damages sustained)
(because of limits on insurance )
(coverage and collectibility ) = $ 25,000.00
( full value of damages. ) $400,000.00
( sustained )
Thus, the second factor is 25
400
The third factor is computed as follows:
(amount paid and future) _
(benefits to be paid ) - $ 37,730.00 (amount paid)
$158,500.00 (future benefits, averaged)
$196,230.00
Thus, the third factor is $196,230.00.
The formula as applied to this case:
OK 12% x " x $196,230.00 = $8,830.35

Thus, using the formula and facts as found by the trial court, appellants are entitled to $8,830.35 equitable distribution under the National Ben Franklin method.

One last thing; it is not clear from the record whether the trial court considered the future benefits to be paid in the light of present dollar value. In the face of the historical unrelenting reduction of the value (purchasing power) of the dollar it is certain that “inflation” will continue and thus the future benefits figure should be reduced to present day value.

The order of the trial court finding the appellant to be entitled to $810.00 is reversed and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, J., concurs.

SHARP, J., dissenting and concurring in result only with opinion.

SHARP, Judge,

dissenting and concurring in result only.

I agree, pursuant to section 440.39(3)(a), Florida Statutes (1978), that an employer or insurance carrier is entitled to receive a pro rata share of a judgment or settlement recovered for reimbursement for compensation and medical benefits paid or to be paid under the Worker’s Compensation law, even though the employee does not recover the full value of damages sustained. This case should be sent back for the application of a proper formula. But I disagree that the formula in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DC A 1976), should be presumptively applied.

The mathematical formula for determining the pro rata share is not set in the statute, and I disagree that we should legislate one by judicial decision. The majority opinion adopts the formula approved in Ben Franklin for this district as the primary method for calculating this share. But even the Ben Franklin court did not impose that formula on the fourth district, and we, in Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982), approved the use of a different formula.

The Ben Franklin formula leaves some unanswered questions. First, there is a question of whether or not the damages recovered from the tortfeasor (here, the net recovery or $18,000) should initially exclude sums attributable to pain and suffering as was done in Sealy. Further, if pain and suffering is excluded from the net recovery figure, should it not also be excluded from the actual damages figure (the $400,000) in fairness to the compensation carrier? The Ben Franklin case did not have a pain and suffering factor, and thus it did not deal with this problem.

An even more difficult problem is whether and how the compensation payments to be made over future years by the compensation carrier should be discounted to present value. In this case, of the $196,230 payable by the compensation carrier only $37,730.00 has actually been paid. The balance, $158,500, will be paid over a number of years. It is obvious that dollars payable in one, ten, and fifteen years are not now worth their face value. In other contexts, damage awards handle this problem by discounting dollars payable in the future to a present worth value. The Florida Bar Continuing Legal Education, Florida Civil Practice Damages § 2.36 (2d ed. 1980). Should not, then, the third factor in this case ($196,230) be reduced to a present dollar value in fairness to the injured worker? Further, if some payments are contingent upon the worker surviving or other events, perhaps they should not be included at all.

In concept, certainty in being able to calculate amounts of “equitable distributions” makes good sense. I sincerely wish equitable distributions in other legal contexts, such as dissolutions, could be numerically addressed and reduced to the application of a single formula. However, I feel that in so doing the judiciary trespasses into the legislative arena, and I have misgivings whether the formula taken up by the majority will operate fairly in cases where a significant portion of the recovery is for pain and suffering, or where the compensation payments are payable over future years. There may be other, better formulas for these cases, and there may be other questions beyond the ones raised here. No formula should be cast in stone.

      . The trial court found that future compensation would be in the range of $137,000.00 to $180,000.00; for an average of $158,500.00. The carrier is entitled to recovery for future benefits to be paid. See Gangler v. South Florida Crane Service, 385 So.2d 153 (Fla. 4th DCA 1980).

      . In Orange County v. Sealy, 412 So.2d 25 (Fla. 5th DCA 1982), we approved a formula which excised the sums attributable to pain and suffering and loss of consortium from the net recovery to be shared with the compensation carrier on the theory that such elements of damages are not reimbursable under the Worker’s Compensation law.

      . The term “equitable distribution,” which appeared in section 440.39(3), Florida Statutes (1953), has long been dropped from the statute. Apparently, the courts have read it back in via the “pro rata” language. See National Ben Franklin Ins. Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), and the majority opinion.


text:
    Henry RUTLEDGE, Appellant, v. R.V. TURNER, Superintendent, Glades Correctional Institution; and Florida Parole and Probation Commission, Appellees.
    No. 82-618.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Rehearing Denied Nov. 18, 1982.
    Henry Rutledge, Belle Glade, pro se appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellees.
   PER CURIAM.

Affirmed. See Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982) and Britt v. Florida Parole & Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982).

ANSTEAD, HERSEY and WALDEN, JJ., concur.


text:
    Michael V. COSTELLO, Appellant, v. C.G. STRICKLAND, Jr., Appellee.
    No. AK-207.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Rehearing Denied Nov. 18, 1982.
    Michael V. Costello, pro se, appellant.
    Jim Smith, Atty. Gen., and James W. Sloan, Asst. Atty. Gen., for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Costello and two other inmates of Florida State Prison, without the assistance of counsel, appeal from a circuit court order dismissing as insufficient on its face their petition for a writ of prohibition and interim relief against the prison superintendent. Petitioners allege that the superintendent and other responsible officers of the prison threaten to remedy or terminate the inmates’ “total hunger strike,” which they staged “to protest the inhumane conditions of confinement” at the prison, by means of “forced medical treatment” and “intervention” not otherwise described. A subsequent motion sought immediate interim relief enjoining the superintendent “from intervening medically or force feeding [petitioners] when their health becomes jeopardized.” Petitioners claim that their “hunger strike” is a form of speech protected by the Constitutions of the United States and of the State of Florida.

We do not reach the merits of this constitutional claim for two reasons. First, prohibition is an inappropriate remedy against an officer not exercising quasi-judicial power. Muina v. Sheriff of Gulf County, 376 So.2d 276 (Fla. 1st DCA 1979). While Rules 1.110(a) and (b), Fla.R.Civ.P., and a liberal reading of petitioners’ prayer for a “temporary restraining order” might permit us to regard the action as for a temporary and permanent injunction, we are deterred by the second flaw in these proceedings. The notice of appeal was prematurely filed before the order dismissing the complaint was rendered, and no showing is made of a prior oral dismissal, as in Williams v. State, 324 So.2d 74 (Fla.1975), which would permit the notice of appeal to invoke this Court’s jurisdiction.

For lack of jurisdiction the appeal is DISMISSED.

MILLS and THOMPSON, JJ., concur.


text:
    John ADAMS, Appellant, v. The CANVASSING BOARD OF BROWARD COUNTY and Thomas Armstrong, Appellees.
    No. 82-2095.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1982.
    Alan S. Becker of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.
    Harry A. Stewart, Gen. Counsel for Bro-ward County, and Noel M. Pfeffer, Asst. Gen. Counsel, Fort Lauderdale, for appellee Canvassing Bd.
    Samuel S. Goren of Josias & Goren, Fort Lauderdale, for Jane Carroll, Supervisor of Elections of Broward County, Florida, ami-cus curiae in support of appellee Canvassing Bd.
   PER CURIAM.

In the September 7, 1982 primary election, Thomas Armstrong won the Democratic nomination for District 96 State Representative. The first count of the computer ballots showed that Armstrong received 18 more votes than did appellant, John Adams. The recount mandated by Section 102.141(4), Florida Statutes revealed two additional votes for Armstrong and five additional votes for appellant. Thus, appellant lost this race by 15 votes.

Ten days after the County Canvassing Board certified the election results, appellant filed in circuit court a pleading, pro se, styled “Request to Contest Election Results,” which purports to be a complaint filed pursuant to Section 102.168, Florida Statutes, Contest of Elections. The trial court dismissed the complaint with prejudice. We affirm.

Appellant argues here that he is entitled to a hand count of the computer ballots, because the different totals of the two counts demonstrates that the count was unreliable. In his complaint, however, appellant did not pray for a hand count of the ballots. Rather, he asked the trial court to estimate the cost of such a hand count so that he could determine whether or not to later ask for a hand count. Appellant has not directed our attention to any provision of Title IX, Electors and Elections, which authorizes such relief.

Appellant has also failed to state a cause of action for inclusion of 17 absentee ballots which were rejected by the Canvassing Board. His complaint states:

[Although it is expected that many of these were for valid reasons, it is suggested that in the event a recount by hand should bring about á change of the results which could be effected by the inclusion of some of these rejected ballots, it is necessary to so note at the time of this contest.

The county Canvassing Board may reject absentee ballots for a defect on the face of the Voter’s Certificate, Section 101.68(2); because the elector returned to his home county and voted in his precinct, Section 101.69; because the ballot was received by the supervisor after 7:00 P.M. on the day of the election, Section 101.67; or for other reasons. With no allegation of fact to support his assertion that “some” of these ballots were improperly rejected, and if counted, “might” change the result, the trial court properly dismissed the complaint. Part of the purpose of the protest and contest provisions of the election code is to effect a speedy resolution of such conflicts, with minimal disruption of the electoral process.

AFFIRMED.

LETTS, C.J., and ANSTEAD and DELL, JJ., concur.


text:
    Marc Sanford EASON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-641.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Bennett H. Brummer, Public Defender, and Barry J. Clyman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The defendant appeals his conviction of two counts of first degree murder in the deaths of Donna and Ronald Fulks. We affirm.

The main focus of the defense at trial and on appeal is the sanity of the defendant. The defense argues that because of the defendant’s prior adjudication of insanity, he was incompetent to stand trial, unable to give a voluntary confession, and entitled to an acquittal by reason of insanity-

It is undisputed that prior to the murders, Eason had been adjudicated insane by a Michigan court and committed to a state mental hospital. The defendant was never discharged from the hospital, nor was there ever an official declaration that his sanity was restored. The defendant simply escaped from the hospital. While there is ordinarily a presumption that a person is sane, where the accused has been previously adjudged insane, there is a presumption that he is still insane. Horace v. Culver, 111 So.2d 670 (Fla.1959); Corbin v. State, 129 Fla. 421, 176 So. 435 (1937); State v. Campbell, 123 Fla. 894, 167 So. 805 (1936). The presumption is not conclusive, but continues until the prosecution shows that the defendant’s sanity has been restored, Campbell, supra; however, to do this, the state is not required to establish that the defendant’s sanity was judicially restored. Boone v. State, 183 So.2d 869 (Fla. 1st DCA), cert. denied, 189 So.2d 632 (Fla.1966).

This presumption is one which attends all stages of the criminal proceeding. Until the presumption is overcome, the accused may not be tried, convicted, or sentenced. Corbin, supra; Campbell, supra, at 806. Therefore, we must decide whether the presumption was overcome at each stage.

Three weeks before trial, on August 17, 1979, a competency hearing was held before the trial court. Testimony was taken from two expert witnesses appointed by the court. Both doctors stated that in their opinion the defendant was competent to stand trial for murder. We find that this testimony was sufficient to overcome the presumption of insanity and hold that the defendant was competent to stand trial.

Similarly, we find that the testimony regarding the defendant’s ability to understand the Miranda warnings was sufficient to overcome the presumption of insanity at the time the confession was given to police. Detective Martinez, who obtained the confession from the defendant testified that he appeared to be acting at full capacity. This testimony was buttressed by the opinion of Dr. Jaslow, a psychiatrist who was called in to interview the defendant the same day. His impression of the defendant, formulated during the two-hour interview, was that despite the prior adjudication of insanity, Eason was able to understand his rights and give a voluntary confession. In the doctor’s judgment, any psychotic process which formerly existed was not actively present on the day Eason confessed to .the murders. Based on this testimony, we find that the state met its burden of overcoming the presumption and must affirm the trial judge’s denial of the motion to suppress.

As to the sanity defense, it has long been held that a defendant’s mental condition at the time of the offense is a question of fact for the jury. Byrd v. State, 297 So.2d 22, 24 (Fla.1974); Aeree v. State, 153 Fla. 561, 15 So.2d 262 (1943). While there was conflicting evidence on the issue of insanity, the jury found that the defendant was sane at the time he committed the murders. The record contains sufficient evidence to overcome the presumption of insanity and to support the jury’s verdict.

Finding no merit in the other issues raised by this appeal, we affirm.

      . Appellant argues that we must reverse because there is no transcript of the April 14, 1978 competency hearing. While it is true that the record does not contain that transcript, another competency hearing was held on August 17, 1979, for which the transcript is available.


author: NESBITT, Judge. JORGENSON, Judge,

text:
    Frank A. HOWARD, Jr., Appellant, v. STATE of Florida COMMISSION ON ETHICS, Appellee.
    No. 81-1747.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Frank A. Howard, in pro. per.
    Philip C. Claypool, Staff Atty., Com’n on Ethics, Tallahassee, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

Pursuant to Section 112.322(3)(a), Florida Statutes (1979), attorney Howard instituted a request for an advisory opinion from the Florida Commission on Ethics concerning the potential for conflict between certain employment in which he was engaged. Uppn receiving an adverse opinion from the Commission, Howard commenced the present appeal.

On our own initiative, we have inquired into our jurisdiction to entertain and decide an appeal from an advisory opinion and decide that we do, in fact, have jurisdiction. While it is true that Howard merely sought an advisory opinion, upon its issuance by the Commission, that opinion became binding on the conduct of Howard. See § 112.322(3)(b), Fla.Stat. (1979). As such, it constituted final agency action ap-pealable under Section 112.3241, Florida Statutes (1979) which, in part, provides:

Any final action by the commission taken pursuant to this part shall be subject to review in a District Court of Appeal upon the petition of the party against whom an adverse opinion, finding, or recommendation is made.

A similar question was presented in Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). In that case, a complaint was filed alleging that Mr. Zerweck violated Section 112.313(7)(a), Florida Statutes (1979). After a hearing, the Commission determined that Zerweck was indeed violating the statute, but decided not to issue a determination of violation or imposition of a penalty. The state argued that Mr. Zerweck was precluded from judicial review because of the Commission’s failure to make a formal determination. Rejecting that argument, the court held:

It is incontrovertible that the final report of the Commission concluded that Mr. Zerweck’s “employment with DJM Properties, Inc., posed a frequently recurring conflict with public duties.” This is an explicit finding that Mr. Zerweck violated the statute and, thus, his entitlement to judicial review is clear. It is of no consequence that the Commission, in the exercise of its discretion, declined to “formalize” its finding or to impose further penalties. Branding a public official as a law-violator is a penalty in itself. More importantly, the right to judicial review is not dependent on the imposition of a penalty. Rather, it turns upon the existence of an adverse opinion, finding, or recommendation. Once articulated, the Commission cannot shield its finding from judicial scrutiny by failing to “formalize” it.

409 So.2d at 60. Thus, it is clear that an advisory opinion, made binding on the party, is subject to appellate review by this court. Furthermore, had Howard not appealed the advisory opinion, that determination would have become res judicata of the issues presented therein. See DeBusk v. Smith, 390 So.2d 327 (Fla.1980). Consequently, we have jurisdiction.

Having determined that this court properly has jurisdiction over this matter, we may now proceed to the merits. Howard is an attorney, licensed and authorized to practice law in Florida. He does not dispute the fact that he occupies the dual status of being an employee of the Dade County School Board serving as school board attorney, as well as being a partner in a law firm which has also contracted to provide legal services to the school board. Both contracts are renewable on an annual basis, and both salaries are fixed so that they will not increase regardless of the time, nature, or extent of the services rendered by either.' The advisory opinion issued by the Commission on Ethics stated that this dual employment presented a conflict of interest which was prohibited under Section 112.313(3), Florida Statutes (1979).

Howard first argues that Section 112.-313(3), supra, interferes with the plenary jurisdiction of the Supreme Court to regulate the practice of law under Article V, Section 15 of the Florida Constitution. We find nothing in the legislative policy evinced by Sections 112.311 and 112.316, Florida Statutes (1979), construed in pari materia with Section 112.313(3), which interferes with the constitutional authority of the Supreme Court to regulate the practice of law. The statutes enacted by the legislature merely supplement the Canons of Professional Responsibility adopted by the Supreme Court. When an attorney decides to accept public employment, he does so subject to the legislative proscription on his conduct.

Howard has presented a plausible argument that the Commission placed a highly technical and unrealistic construction upon the statute. By its plain terms, the statute prohibited Howard from serving as a public employee at the same time that he is a partner in a law firm which is providing legal services to the school board. This prohibition was imposed without any hint of wrongdoing or impropriety on Howard’s part. While we enforce the obvious power conferred upon the Ethics Commission, we do so reluctantly where, in its broad application, the statute prohibits dual positions without any allegation of impropriety.

Affirmed.

JORGENSON, Judge,

concurring in part, dissenting in part.

I agree that we have jurisdiction to entertain this appeal. I also agree that Section 112.313(3), Florida Statutes (1979), does not interfere with our Supreme Court’s plenary jurisdiction to regulate the practice of law.

I dissent, however, from the Court’s af-firmance of the Commission’s advisory opinion.

The retainer agreement with Mr. Howard and his law firm openly arrived at and in use for a number of years does not, in my view, violate Section 112.313(3), Florida Statutes (1979). The contract which employs Mr. Howard, individually, and his firm is nothing more than a retainer agreement securing certain legal services. The fact that the agreement characterizes Mr. Howard as a board employee ought not to operate to create an ethical dilemma in contravention of the statute where, as here, the retainer agreement contemplates, in the same document, the employment of an individual lawyer and his law firm.

A fair reading of the entire statute suggests that among the multiple interests served by the Code of Ethics is the ability of an agency to attract and keep highly qualified personnel. Indeed, Section 112.-311(4), Florida Statutes (1979), specifically speaks to this issue.

I would give effect to the obvious legislative intent and disapprove of the Commission’s advisory opinion.

APPENDIX I

State of Florida [SEAL] Commission on Ethics July 16,1981

Mr. Frank A. Howard, Jr.

School Board Attorney

Dade County Public Schools

Administrative Office

Lindsey Hopkins Building

1410 Northeast Second Avenue

Miami, Florida 33132

RE: CONFLICT OF INTEREST — Law firm of school board attorney providing legal services to school board

Dear Mr. Howard:

This is in response to your request for an advisory opinion from the Commission on Ethics on substantially the following question:

DOES A PROHIBITED CONFLICT OF INTEREST EXIST WHERE YOU, AN EMPLOYEE OF A SCHOOL BOARD SERVING AS SCHOOL BOARD ATTORNEY, ARE A PARTNER IN A LAW FIRM WHICH ALSO HAS CONTRACTED TO PROVIDE LEGAL SERVICES TO THE SCHOOL BOARD? Your question is answered in the affirmative.

In your letter of inquiry you advise that you have entered into an annual employment agreement with the Dade County School Board under which you are paid a salary as School Board Attorney responsible for the handling of all the legal matters of the School Board. Under the agreement, you hold a regularly established position, are designated as a permanent employee in personnel records, and are paid a salary from the Board’s regular salaries and wages account. Deductions from your salary are made for federal income taxes, social security contributions, and group insurance. In addition, the Board has made retirement contributions on your account to the Florida Retirement System. Under the employment contract, you are required to be on call at all times to serve the Board on a priority basis, although you are permitted to continue in the general practice of law with your law firm.

In addition, you advise that as part of the same agreement with the School Board, your law firm has contracted to provide legal services to the School Board in exchange for a fixed annual sum as compensation. The firm receives no other or additional compensation from the Board, aside from reimbursement of costs. Pursuant to the contract, the necessity for and extent of services to be performed by the law firm are to be determined by you, as the Board attorney.

Finally, you advise that it is your position that you are and have been personally an employee of the School Board, that the law firm is an independent contractor with the Board, and that under the contractual arrangement and the circumstances of their approval by the Board no prohibited conflict of interest exists.

We agree that under the circumstances you have presented you are an employee of the School Board. See CEO 77-76, CEO 78-65, and CEO 79-24, copies of which are enclosed. In addition, we agree that your law firm is an independent contractor with the School Board.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE’S AGENCY. — No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

Section 112.313(3), Florida Statutes (1979).

This provision prohibits you, as a public employee, from acting in a private capacity to sell any services to your “agency,” which is the School Board under the definition of “agency” contained in Section 112.312(2), Florida Statutes.

In previous opinions, we have advised that one acts “in ,a private capacity” to sell realty, goods, or services when he is an officer or director of, or owns more than five percent of, the business entity which is selling such realty, goods, or services. See, for example, CEO 78-39, a copy of which is enclosed. We also have advised that a partner is “acting in a private capacity” when his partnership acts. See CEO 79-83, Question II, a copy of which is enclosed. Thus, we have interpreted Section 112.313(3), Florida Statutes, to apply not only where a public officer or employee is selling his personal services in a private capacity to his agency, but also where the officer or employee is acting in a private capacity to sell the services of another. In this regard, we note that the language of the statute is not couched in terms of prohibiting a public officer or employee from acting in a private capacity to sell his services to his agency, but rather in terms of prohibiting him from acting in a private capacity to sell any services to his agency.

Here, in addition to the services you are providing to the School Board as an employee, the law firm of which you are a partner has contracted to sell its services to the School Board. We also note that you have signed the firm’s contract with the School Board as a partner in behalf of the firm, and that you have advised that you share as a partner in the retainer which is paid to the firm by the School Board. These circumstances provide a further indication that you have acted and are acting in a private capacity to sell the services of your law firm to the School Board.

Section 112.313(3) does contain a “grandfather” clause, which would exempt contracts entered into prior to October 1,1975. However, we find that this provision would not apply to exempt the services provided to the School Board by your law firm, since the contract between the firm and the School Board has been entered into annually-

Accordingly, we find that a prohibited conflict of interest exists where you are an employee of a School Board serving as School Board Attorney and you are a partner in a law firm which also has contracted to provide legal services to the School Board.

Respectfully submitted,

THE COMMISSION ON ETHICS

/s/ William C. Andrews William C. Andrews Chairman

/s/ Lawrence A. Gonzalez Lawrence A. Gonzalez Executive Director

      . Section 112.322(3)(b), supra, provides:
      Said opinion, until amended or revoked, shall be binding on the conduct of the officer, employee, or candidate who sought the opinion or with reference to whom the opinion was sought, unless material facts were omitted or misstated in the request for the advisory opinion.

      . This statute is authorized by Article V, Section 4(b)(2) of the Florida Constitution which provides: “District Courts of Appeal shall have direct review of administrative action, as prescribed by general law.”

      .It would have been of great assistance to this court if the attorney for the Commission had advised us of the Fourth District’s decision in Zerweck, supra (a case in which the attorney for the Commission participated), when we inquired about our jurisdiction at oral argument.

      . The advisory opinion is reproduced in the appendix to this opinion.

      . There is no suggestion by Howard that the legislature exceeded its authority by the enactment of Section 112.313(3), supra.

      . I gather from the record that the primary purpose of this characterization of employment is to enhance certain retirement benefits not the subject matter of this appeal.

      . § 112.311(4), Fla.Stat. (1979), provides as follows:
      (4) It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service.


author: PER CURIAM. SCHWARTZ, Judge

text:
    The State of Florida, Appellant, v. David E. STEVENS, Appellee.
    No. 81-2764.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before BARKDULL, SCHWARTZ, and NESBITT, JJ.
   PER CURIAM.

The order granting the defendant’s motion to suppress his photographic identification is reversed because the photograph in question was properly procured as a result of a search incident to defendant’s lawful arrest for the misdemeanor of furnishing a police officer with false information. In a light most favorable to the defendant, it was established that, in response to a Terry stop, the defendant furnished the investigating police officer with the name of Michael Robbins, while at the same time, the policeman observed the word “David” tattooed upon his forearm. Some two hours later, the same police officer stopped the defendant in connection with a second incident. The defendant stated that his name was Jeff Woodson. When the officer asked the defendant for his real name, he reinforced his previous answers in replying, “I already told you.” This disparate information afforded the police officer with authority to arrest the defendant for furnishing false information, which is a violation of Metropolitan Dade County Code Section 21-26(A)(3)(a), punishable as a misdemean- or pursuant to Section 125.69, Florida Statutes (1979). Alexander v. State, 418 So.2d 432 (Fla. 3d DCA).

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

SCHWARTZ, Judge

(specially concurring).

I concur in reversal, both for the reason stated in the majority opinion and because the result reached below would be incorrect even if the photograph of the defendant later employed for identification purposes had been initially improperly secured. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979), and cases cited.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Vincent CANDALES and Gladys Candales, his wife, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 82-106.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Wolf son, Appel & Brown, Greene & Cooper and Joan M. Bolotin, Miami, for appellants.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a final judgment denying a petition to confirm an arbitration award and dismissing the same with prejudice. We reverse upon a holding that the trial court was required to confirm the arbitration award upon proper application under Section 682.12, Florida Statutes (1981) because an arbitration award, in fact, was made and no grounds for vacating or modifying that award were presented below under Sections 682.13, 682.14, Florida Statutes (1981). See Travelers Insurance Co. v. Allen, 356 So.2d 1287, 1288 (Fla. 3d DCA), cert. denied, 364 So.2d 893 (Fla.1978).

The subject arbitration award was signed by all three arbitrators after a full arbitration hearing. One of the arbitrators, however, had second thoughts after signing the award. He rescinded his assent thereto and claimed the award did not reflect what the arbitration panel had agreed to; the other two arbitrators disagreed and stood by their award. Under these circumstances, the trial court had no alternative but to confirm the arbitration award as, without dispute, two of the three arbitrators were in full agreement with the award. Cassara v. Wofford, 55 So.2d 102,105 (Fla.1951); Bohlmann v. Allstate Insurance Co., 171 So.2d 23 (Fla. 2d DCA 1965); Travelers Indemnity Co. v. Walton, 384 So.2d 939 (Fla. 3d DCA 1980). The fact that the dissenting arbitrator kept the award in his possession, transferred it later to the appellee’s counsel, and declined throughout to deliver the award [technically undated] to the appellant insured, cannot change this result.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to grant the petition to confirm the arbitration award herein.


text:
    The STATE of Florida, Appellant, v. Curtis WILLIAMS, Jr., Appellee.
    No. 82-332.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The action of the trial court in arresting judgment upon a jury verdict of guilty of possession of a firearm in the commission of a criminal offense because the defendant was acquitted of the underlying felonies is affirmed on the authority of Redondo v. State, 403 So.2d 954 (Fla.1981). Accord Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981), review denied, 412 So.2d 471 (Fla.1982); Palacio v. State, 402 So.2d 500 (Fla. 3d DCA 1981).

      . We note that even if the supreme court were subsequently to depart from the holding in Re-dondo, a new trial would be required on the possession charge because the trial court failed to instruct the jury on the elements of that crime. Ingram v. State, 393 So.2d 1187 (Fla. 3d DCA 1981); Williams v. State, 366 So.2d 817 (Fla. 3d DCA 1979), cert. denied, 375 So.2d 912 (Fla.1979).


author: NESBITT, Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, a State Agency, Petitioner, v. The Honorable Howard GROSS, Judge of the Circuit Court in and for Dade County, Florida, and the Honorable Arthur Snyder, Judge of the Circuit Court in and for Dade County, Florida, Respondents.
    Nos. 82-1214, 82-1215.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      M. Carmen Dominguez, Coral Gables, for petitioner.
    Jim Smith, Atty. Gen., and Theda R. James, Andrew H. Boros, and Calvin Fox, Asst. Attys. Gen., for respondents.
    Before NESBITT, BASKIN, and FERGUSON, JJ.
   NESBITT, Judge.

In separate criminal proceedings, the respondent judges adjudicated defendants guilty of the offense of sexual battery, withheld sentences, and ordered that the defendants be committed to the Mentally Disordered Sex Offender Program at South Florida State Hospital as a special condition of probation.

The Department of Health and Rehabilitative Services (HRS) petitioned this court for writs of mandamus directing the circuit judges to refrain from enforcing the commitment orders.

Section 917.017, Florida Statutes (1981), provides that HRS shall not permit entry of a sex offender into any of its residential sex offender treatment programs unless the procedure specified in Section 917.012, Florida Statutes (1981), is followed with respect to that sex offender. Section 917.012 clearly provides that a sex offender must have been sentenced before entering the residential treatment program and that the Department of Corrections and HRS shall jointly determine the eligibility of sex offenders for such programs.

It is contended on behalf of the respondents that the entry of their orders was justified by the broad powers granted to judges in formulating conditions of probation. § 948.03(3), Fla.Stat. (1981). This argument fails on the principle of statutory construction which dictates that a statute dealing specifically with a particular subject matter takes precedence over another statute covering the same and other subjects in general terms. Adams v. Culver, 111 So.2d 665, 667 (Fla.1959); Tallahassee Democrat, Inc. v. Florida Board of Regents, 314 So.2d 164, 166 (Fla. 1st DCA 1975); Panzavecchia v. State, 201 So.2d 762, 764 (Fla. 3d DCA 1967).

As so construed, Sections 917.012 and 917.017, dealing specifically with the entry of sexual offenders into residential treatment programs, govern over the general discretionary powers afforded trial judges by Section 948.03(3) regarding probationers.

Because the petitions for mandamus seek to quash orders which have already been entered, and because the challenged orders depart from the essential requirements of law in that they constitute an unwarranted judicial incursion into the executive function and authority conferred upon HRS, State ex rel. Department of Health and Rehabilitative Services v. Sepe, 291 So.2d 108 (Fla. 3d DCA 1974); see Dade County v. Baker, 237 So.2d 545 (Fla. 3d DCA 1970), we treat HRS’ applications as petitions for common law certiorari, Fla.R.App.P. 9.040(c), award the writs of certiorari, and quash the orders under review.

It is so ordered.


text:
    Jerome L. SPRING and Ava Spring, Petitioners, v. RONEL REFINING, INC., a Florida corporation, Respondent.
    No. 82-1481.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    William A. Cain, North Miami Beach, for petitioners.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, for respondent.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The respondent brought an action seeking to foreclose a second mortgage on the petitioners’ property. The petitioners filed their answer, affirmative defenses, and counterclaim seeking damages for fraud and misrepresentation, and cancellation of the note and mortgage. They requested a jury trial on all issues so triable. The trial judge placed the entire cause on the court’s nonjury calendar. By way of petition for writ of certiorari, petitioners seek review of the order setting this cause for a nonjury trial. We grant the petition.

In setting the cause for nonjury trial, the trial court departed from the essential requirements of law. Foreclosure is a traditional equitable remedy as is the counterclaim for cancellation. It is equally unassailable that the counterclaim for fraud and misrepresentation presents a legal claim for which the petitioners were entitled to a jury trial. The mixture of equitable and legal claims in the same case cannot deprive a party of its right to a jury trial of issues traditionally triable to a jury. Padgett v. First Federal Savings & Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979) and cases cited therein. The more difficult question, however, is the order in which these issues must be tried. In Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971), the court held:

[I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue nonjury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not conclude the case. Southwestern Life Insurance Co. v. Gerson, [187 So.2d 63 (Fla. 3d DCA 1966)]. But where the compulsory counterclaim entitles the counter-claimant (upon timely demand) to a jury trial on issues which are sufficiently similar or related to the issues made by the equitable claim that a determination by the first fact finder would necessarily bind the later one, such issues may not be tried non jury by the court since to do so would deprive the counterclaimant of his constitutional right to trial by jury.

248 So.2d at 684.

In the present case, we find that the issues in the fraud claim are sufficiently similar to the issues in the foreclosure action so as to first require a jury trial of the legal claim. If, after the jury verdict, there are unrelated equitable issues remaining, the trial court may then consider those claims. Padgett, supra, at 64; Adams, supra, at 685.

The respondent contends that the petitioner’s application is not cognizable by common law certiorari because the error is one which may be rectified by plenary appeal. A succinct analysis of the purpose and function of the writ is stated in Kauffman v. King, 89 So.2d 24, 26 (Fla.1956):

It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that this court will exercise its discretionary power to issue the writ.

Accord Huie v. State, 92 So.2d 264, 269 (Fla.1957). Brooks v. Owens, 97 So.2d 693, 695 (Fla.1957).

We entirely agree with the observations of Judge Mann in Sarasota-Manatee Airport Authority v. Alderman, 238 So.2d 678, 679-80 (Fla. 2d DCA 1970) where he wrote:

This case illustrates how a basic right such as trial by jury can be litigated almost ancillary to the lesser problem of the appealability of an interlocutory order. We see no constitutional barrier to the grant of common law certiorari under our Florida Constitution, Article V, Section 5(3), where a clear departure from settled principle threatens to prolong litigation needlessly. See 5 Moore’s Federal Practice, § 39.13. We exercise this constitutional power sparingly, and only in the interest of expediting justice in clear cases.

See also Freedman v. Rosin, 394 So.2d 241 (Fla. 1st DCA 1981).

In the present case, the denial of the right to jury trial is more than the denial of a constitutional right; it is the denial of a fundamental right recognized prior to the adoption of a written constitution. The right to select the peers to which one’s cause will be submitted is unique and indis-pensible to the adversary system. For this reason, we deem certiorari to be the appropriate remedy in this instance. If we are accused of granting special dispensation by the review of this type order, then our critics can take solace in the fact that there will be few instances where litigants will present to us similar problems of such great consequence.

The petition for common law certiorari is granted and the order setting the cause for non jury trial is quashed with directions to grant a jury trial on the petitioners’ counterclaim.

      . We recognize that our decision, as well as that of the First District in Freedman, supra, and the Second District in Sarasota-Manatee, supra, conflicts with Lindsey v. Sherman, 402 So.2d 1349 (Fla. 4th DCA 1981).


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Cora MESSANA, Appellant, v. Frank Lawrence MESSANA, as personal representative of the Estate of Frank Messana, Appellee.
    No. 80-1803.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1982.
    Edna L. Caruso and Johnson & Bakst, P.A., West Palm Beach, for appellant.
    Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

This is an appeal by the wife from a final judgment of dissolution signed after the husband’s death “nunc pro tunc” as of a date prior to the death. The wife and the husband’s personal representative agree that the husband died and that the wife moved to dismiss the suit before the nunc pro tunc judgment was signed, but the parties disagree on whether the trial court had orally granted dissolution prior to the death. We need not, however, determine whether the trial court had orally granted a dissolution because an oral dissolution is not effective under Florida law. Jaris v. Tucker, 414 So.2d 1164 (Fla. 3d DCA 1982) (en banc); Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944). When a party to a divorce action dies before the trial court signs a written order of dissolution, the trial court must dismiss the action. Id. Accordingly, the judgment is vacated and this cause is remanded with instructions to dismiss.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Hubert James, Appellants, v. Jon W. SCHAEFER, Appellee.
    No. 81-919.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1982.

      Rosemary Cooney of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appellants.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed. See St. Louis-San Francisco Railway Company v. Sidberry, 406 So.2d 82 (Fla. 1st DCA 1981) and Evans v. Kabbes, 407 So.2d 260 (Fla. 2d DCA 1981).

HURLEY and DELL, JJ., and DWIGHT L. GEIGER, Associate Judge, concur.


text:
    William S. ROACH, Appellant, v. LOXAHATCHEE GROVES WATER CONTROL DISTRICT, Appellee.
    No. 81-2383.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 1982.
    John L. Bryan, Jr., of Scott, Royce, Harris & Bryan, Palm Beach, for appellant.
    Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Roach v. Loxahatchee Groves Water Control District, 417 So.2d 814 (Fla. 4th DCA 1982).

GLICKSTEIN and HURLEY, JJ., and OWEN, WILLIAM G, Jr. (retired) Associate Judge, concur.


author: RYDER, Judge.

text:
    Charles Thomas COFFEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-428.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1982.
    Dennis Rehak, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant contends that the trial court erred in excluding the testimony of a defense witness whose name was not included on the witness list without first making an adequate inquiry into all the surrounding circumstances. We agree.

The defendant was tried by jury on a charge of aggravated assault. At trial the defense called Mr. John Irwin as a witness. The prosecutor requested that Mr. Irwin be barred from testifying simply because his name had not been included on the witness list provided to the state pursuant to Florida Rule of Criminal Procedure 3.220. Defense counsel opposed this motion indicating that he did not know Mr. Irwin’s name until that day. The court, without further inquiry into the circumstances surrounding the failure to comply with the rule, granted the state’s motion.

Where it is brought to the attention of the trial court that a party has failed to comply with the criminal rules of discovery, the trial court has the discretion to determine whether the noncompliance would result in harm to the other party. However, this discretion can only be properly exercised after the court has made an adequate inquiry into the surrounding circumstances. Richardson v. State, 246 So.2d 771 (Fla. 1971); Roberts v. State, 370 So.2d 800 (Fla. 2d DCA 1979). This the trial court failed to do.

Accordingly, we REVERSE and REMAND the cause for a new trial.

BOARDMAN, A.C.J., and SCHEB, J., concur.


author: CAMPBELL, Judge.

text:
    BUREAU OF CRIMES COMPENSATION, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellant, v. David W. TRAAS, a minor, by his grandmother/custodian Dorothy Ballew, Appellee.
    No. 82-465.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1982.

      Michael J. Rudicell, Tallahassee, for appellant.
    William M. Holt of Chilldon & Chilldon, P.A., Tampa, for appellee.
   CAMPBELL, Judge.

This is an appeal from an order of the deputy commissioner awarding payment under the Crimes Compensation Act, Chapter 960, Florida Statutes (1981), of medical expenses for psychiatric treatment of the son of a deceased victim of a crime. We reverse.

The deceased died on October 11,1980, as a result of injuries he received in a barroom fight. His assailant was subsequently convicted of manslaughter. A claim for benefits under the Crimes Compensation Act was made on behalf of the victim’s son, appellee. The Bureau of Crimes Compensation awarded $1,439.36 to appellee for loss of financial support. Claim for appellee’s bills for psychiatric hospitalization was denied and appellee requested a hearing before a deputy commissioner.

The testimony at the hearing showed that appellee had pre-existing psychiatric problems which were severely aggravated as a result of his father’s death. The record indicates that subsequent to his father’s death, appellee made suicidal statements and became preoccupied with talking about the gruesome details of his father’s death. The appellee also became preoccupied with thinking of ways to kill his father’s murderer. Appellee was hospitalized for psychiatric treatment for his condition in October and November of 1980. In his order, the deputy found that the hospitalization was directly related by cause and effect to the crime committed. The deputy, citing the legislative intent of the Crimes Compensation Act, section 960.02, Florida Statutes (1981), found that the appellee fell concurrently within the provisions of sections 960.-03(1) and 960.03(7), and was both the victim of the crime and the claimant. Based on this finding, the deputy awarded appellee out-of-pocket expenses for the hospitalization and treatment of his psychiatric condition.

This award was erroneous. The Crimes Compensation Act was intended to reimburse victims and intervenors for their physical injuries and assist them in resultant financial hardships. See §§ 960.03(6), 960.03(7) and 960.04(1), Fla.Stat. (1981). By his finding that the appellee was both a victim of the crime and claimant, the deputy vastly expanded the intended coverage of the Act so that its coverage goes beyond the direct results of the crime. It is clear that the appellee cannot be construed as a victim as defined under the Act. Victim is defined in section 960.03(7), Florida Statutes (1981), as “any person who suffers personal physical injury or death as a direct result of a crime.” The appellee’s injuries here were clearly of a psychological rather than a physical nature.

While the Act was intended to provide dependents of deceased victims with financial support, see § 960.04, it cannot be stretched to include the payment of medical bills for the dependent of a victim who allegedly suffers a psychiatric reaction due to a crime. To hold otherwise reaches the paradoxical conclusion that a person directly subjected to a crime but not physically injured is not entitled to benefits for mental injuries resulting from the crime, but the dependent of a person who was injured is entitled to such benefits. Accordingly, the order of the deputy commissioner awarding benefits to the appellee for the treatment of his psychiatric condition is reversed.

REVERSED.

OTT, C.J., and HOBSON, J., concur.


author: WENTWORTH, Judge.

text:
    PUBLIX SUPERMARKETS, INC. & Hartford Insurance Co., Petitioners, v. Steve KOSTRUBANIC, Respondent.
    No. AC-261.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Richard H. Gaunt, Jr., West Palm Beach, for petitioners.
    Michael A. Edwards, West Palm Beach, for respondent.
   WENTWORTH, Judge.

Petitioner seeks review of an order of the deputy commissioner requiring it to produce for inspection by the deputy copies of all written and recorded statements taken from “all witnesses in this cause.” The order states that the deputy will deliver to the claimant’s attorney “those portions of said statements in which witnesses indicate what the claimant said to them.” We reverse.

The order was entered after a hearing on claimant's motion to produce. At the hearing the deputy stated on the record the parties’ positions as follows:

We are also hearing argument that certain statements, recorded statements given by employees of the Employer be furnished to the Employee. And I’m going to state on the record the position of the parties subject to addition and correction by the parties.
Mr. Edwards has asked that these be produced; Mr. Guant feels that these items are work product. Mr. Edwards, I believe, agrees that they’re work product, but he’s asking for an exception to the general rule because the expense of trying to take the depositions of the parties to get the same information that could be obtained merely by copying portions of these statements would be excessive, especially in relation to the amount of benefits that can be anticipated to be obtained in this case, [e.s.]

Petitioner argues (1) that the deputy erred in requiring production of the statements because claimant did not comply with the applicable rules requiring a showing that he could not obtain the substantial equivalent of the materials by other means without undue hardship; and (2) that review of the order (prior to the deputy’s inspection and designation of discoverable items) is not premature because the deputy is the trier of fact as well as law, and his inspection of such material as may be privileged would therefore involve risk of extra-evi-dentiary bias independent of the alleged error in any order ultimately entered for delivery of portions to claimant’s attorney. Respondent argues in support of the order (1) that no hardship need be shown to support the order because rules of procedure for workers’ compensation are more relaxed than for civil proceedings generally; and, alternatively, (2) that hardship inheres in the fact that depositions in this case “could easily cost more than the total benefits recovered by the claimant, should he prevail.” Because the record does not show a timely assertion of claimant’s further contention here that the subject materials were not prepared in anticipation of litigation, we need not consider the point at which the work product classification applies to materials prepared in investigation of a claim, or which serve some purpose independent of anticipated trial before the deputy.

We find in this case no basis for avoiding the expressed intent of Rule 9, Florida Workers’ Compensation Rules of Procedure, that discovery should be accomplished “in the same manner” as provided in the civil rules. Even assuming a deputy’s discretion in application of the rules, claimant does not meet the substance of the rule’s requirement by asserting a bare costs/benefits ratio based on alleged necessity for “depositions by the claimant of all potential witnesses” in the case. That position ig-ñores both a reasonable standard of need and availability of more limited written discovery methods, and would render the hardship requirement meaningless in this context. If the ordinary costs of discovery should be deemed a hardship for claimants generally, that factor would in our opinion properly be addressed by rule revision.

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

SHAW and THOMPSON, JJ„ concur.

      . See Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978), as to certiorari review of such an order.

      . RULE 9. DISCOVERY
      Depositions may be taken ... in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure. Florida Workers’ Compensation Rules of Procedure, Rule 9.
      RULE 1.280. General Provisions Governing Discovery
      (a) Discovery Methods. Parties may obtain discovery by ... depositions upon oral examination or written questions; ... production of documents ... for inspection and other purposes; .. . [e.s.]
      (b) Scope of Discovery ....

        (2) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(3) of this rule, a party may obtain discovery of documents ... prepared in anticipation of litigation ... only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means .... [e.s.]
      Florida Rules of Civil Procedure, Rule 1.280.

      . Cf., Travelers Indemnity Company v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972).

      . Ezell-Titterton, Inc. v. A.K.F., 234 So.2d 360 (Fla.1970); Heath v. Thomas Lumber Co., 140 So.2d 865 (Fla. 1962); Jarvis v. Miami Retreat Foundation, 128 So.2d 393 (Fla. 1961).

      . We note also that the dispute in this case does not relate to any written statement by claimant or transcription of a “substantially verbatim recital ... contemporaneously recorded.” Rule 1.280, supra.


text:
    C.W.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. AJ-270.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we find no reversible error.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    Edward S. KENNEDY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-191.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Stephen A. Smith of Smith & Smith, P.A., Lake City, for appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Kennedy appeals the establishment of his presumptive parole release date. We affirm.

Kennedy contends that the offense characteristic for sexual battery with threat of force likely to cause serious injury should have been applied instead of the offense characteristic for sexual battery with use of force. The record reveals that the rape occurred at knifepoint and the victim was actually cut. There is no error in treating this as use of force.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Appellant, v. Crate B. JACKSON, employee Florida State Hospital, and Division of Risk Management, Appellees.
    No. AL-432.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Douglas P. Chanco, Tallahassee, for appellant.
    Thomas J. Maida of McConnaughhay & Roland, Tallahassee, for appellees.
   PER CURIAM.

AFFIRMED. Special Disability Trust Fund v. Sunshine Junior Food Stores, Inc., 417 So.2d 1170 (Fla. 1st DCA 1982).

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: ERVIN, Judge.

text:
    Keith Leroy JONES, Appellant, v. STATE of Florida, Appellee.
    No. AM-351.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Valerie E. Janard, Quincy, for appellant. No Appearance for appellee.
   ERVIN, Judge.

Keith Leroy Jones appeals the denial of his motion for post-conviction relief. Fla.R. Crim.P. 3.850. We reverse the lower court’s order and remand the cause with directions that those pages of the record below which conclusively refute Jones’ allegations relating to ineffective assistance of counsel be made part of the record on appeal, or, in the alternative, if the record does not so refute the allegations, that a full evidentiary hearing be accorded Jones on the issues raised in his motion to vacate.

Appellant has alleged that he was the victim of two automobile accidents resulting in severe brain injuries causing seizures that require him to take regular doses of medication; that he was subsequently charged in a case unrelated to that now on appeal with burglary and petit theft in 1979; that based on an examination by two doctors in March, 1980, a court of law found him to be incompetent to stand trial; that the same court ordered Jones to be re-examined in six months for a determination of competency, yet he was never re-examined nor adjudicated competent to stand trial. In September, 1980 appellant was arrested for dealing in stolen property. Upon his incarceration while awaiting arraignment, Jones became involved in a fight with a cellmate, resulting in his being charged with aggravated battery.

Jones obtained private counsel, and his mother immediately advised the attorney of information casting serious doubts as to Jones’ competence. According to the allegations in the motion to vacate, counsel did not investigate this information, but instead effectuated a plea bargain whereby Jones pled guilty to the lesser offense of aggravated assault, in exchange for which the state nolle pressed the charge of dealing in stolen property. At arraignment, Jones’ counsel advised the court that his client was mentally competent to enter the plea and was not “presently operating under the influence of drugs or intoxicants.” The court, upon determining that appellant had voluntarily entered his plea, accepted the plea. During the later sentencing proceeding, Jones’ counsel allegedly changed his position by tendering certain information to the court, to the effect that Jones had taken regular doses of medication, and had never fully recovered from the automobile accidents. Although counsel then made certain arguments in appellant’s behalf relating to the accuracy of a post-sentence investigation report, he was accused of ignoring a reference in the report to the prior determination of Jones’ incompetency(

After sentencing, Jones’ new attorney filed a motion for post-conviction relief, styling the motion as one seeking relief based upon the theory that Jones had been furnished ineffective assistance of counsel. The lower court summarily denied Jones’ motion without either an explanation or an attachment of portions of the trial record refuting Jones’ allegations. In so doing, the lower court has hampered our ability to review this case and departed from the spirit of Florida Rule of Criminal Procedure 3.850, noted in the accompanying “Committee Note” authored by the rule’s drafters. Van Bever v. State, 405 So.2d 474, 475 n. 2 (Fla.5th DCA 1981).

Because no portion of the record was attached to its order of denial, the trial court impliedly found the motion legally insufficient on its face, for when the motion is facially sufficient, the trial court must either attach that portion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing.

Id. at 474-475 (footnote omitted); see also Brown v. State, 409 So.2d 129, 130 n. 2 (Fla.5th DCA 1982). If, however, the motion is facially insufficient, the failure to attach portions of the record refuting Jones’ allegations may be excused as harmless error. See, e.g., Cowick v. State, 419 So.2d 779 (Fla. 1st DCA 1982); cf. Goode v. State, 403 So.2d 931, 933 (Fla. 1981).

Thus, the determinative issue at bar is whether the motion is facially sufficient. Despite its not being specifically styled as such, the motion charges also that Jones involuntarily pled guilty due to mental incompetence. The issues of ineffective assistance of counsel and an involuntary plea of guilt are inseparably intertwined; both are cognizable on a motion for post-conviction relief, LeDuc v. State, 415 So.2d 721 (Fla.1982); Baker v. State, 404 So.2d 1151 (Fla.5th DCA 1981). Mere inconclusive allegations of mental incompetence, as in Baker, of ineffective assistance of counsel, or of an involuntary guilty plea, Le-Duc, are insufficient to trigger further review by this court. However, given the detail furnished in the motion and viewing Jones’ allegations as presumptively true, it is apparent to us that Jones has pointed to three specific, prejudicial circumstances requiring more than summary dismissal.

First, Jones had been adjudicated incompetent to stand trial at a time before he committed the aggravated battery and before he was brought to trial for that offense. Further, he has yet to be adjudicated competent to stand trial. Once an individual is adjudicated incompetent, it is presumed that he remains so until otherwise adjudicated, and he cannot be tried or sentenced while he remains in such condition. Livingston v. State, 383 So.2d 947 (Fla.2d DCA 1980). Because Jones had been adjudicated incompetent, and had never subsequently been adjudicated competent, we distinguish the facts in the case at bar, as well as in Livingston, from those in Bryant v. State, 373 So.2d 380 (Fla.lst DCA 1979), wherein Bryant had been examined by a psychiatrist prior to his commission of an offense but had never been adjudicated either incompetent or insane. Contrast also Ippolito v. State, 214 So.2d 637 (Fla.2d DCA 1968) (defendant adjudged sane at time of his hearing).

Second, although Jones had consumed mind altering medications at the time he entered his plea, his attorney never informed the court of this fact at such time. Inconsistently, however, at the later sentencing proceeding, he advised the court that Jones in fact had taken daily doses of drugs to control seizures resulting from the accident, and that it was his opinion that Jones “does not have the intellect to protect himself should he be placed in ... [sjtate [pjrison.” Notwithstanding these assertions, counsel neglected to request the court to withdraw the former plea of guilty. An attorney’s failure to advise a court of a defendant’s sedated condition at trial may invalidate a guilty plea as one having been made involuntarily. Capshaw v. State, 362 So.2d 429 (Fla.2d DCA 1980); see also Lesley v. State, 370 So.2d 85 (Fla.2d DCA 1979).

Third, our review of appellant’s motion reveals that his allegations refer to specific omissions or overt acts by trial counsel, all of which we do not list in this opinion. The acts or omissions alluded to, and if true, suggest seriously deficient representation measurably below that of competent counsel. Further, the deficiencies were prejudicial to the point that “there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

Because Jones’ motion for post-conviction relief is specific in alleging prejudicial circumstances and facially sufficient, we REVERSE the lower court’s denial of appellant’s motion for post-conviction relief. We REMAND so that the lower court may either attach pages from the record of the trial proceedings that conclusively refute Jones’ allegations of an involuntary plea, mental incompetence, and ineffective assistance of trial counsel, or, if the record does not contradict those allegations, that the court conduct an evidentiary hearing directed to such issues.

MILLS and WIGGINTON, JJ., concur.


text:
    TALLAHASSEE DEMOCRAT, INC., and Karen Olson, Petitioners, v. Declan O’GRADY, Respondent.
    No. AO-410.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1982.
    C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., Eric J. Taylor, Asst. Atty. Gen., for respondent.
   ON MOTION FOR RECONSIDERATION

MILLS, Judge.

The petitioners ask us to reconsider our order dismissing this cause as moot. We deny the motion for the reasons stated below.

This case grows from the indictment of Christine Falling by the Taylor County Grand Jury. Prior to the indictment, the respondent entered an administrative “gag” order. This order was admittedly entered without due process. The Tallahassee Democrat petitioned for a writ of certiorari to review this gag order. In response to our show cause order, the respondent quashed the gag order. Upon the filing of the quashing order with this court, we dismissed the petition as moot. The Tampa Tribune sought intervenor status as a petitioner. Intervention is not authorized at the appellate level; instead a petition for a writ of certiorari coupled with a motion to consolidate is appropriate. In spite of this, we have considered the Tribune’s petitions in reaching our decision. The respondent judge then, without a hearing or notice to the newspaper, entered the following order:

[Mjembers of the Grand Jury and witnesses who testified before the Grand Jury on matters concerning any alleged criminal activity upon the part of Christine Falling, are hereby restrained and enjoined from discussing or attempting to discuss with any person, in any manner whatsoever, any testimony of a witness examined before the Grand Jury, except the witnesses may disclose any testimony to the State Attorney and his staff and to the defendant, her attorney and her attorney’s staff; said injunction to remain in full force and effect until this court is convinced that such disclosure will not interfere with the administration of justice.
This order is to be read with conjunction with Section 905.27 of the Florida Statutes. A violation of this order or of Section 905.27, Florida Statute will constitute criminal contempt of court.

The newspapers then petitioned for reconsideration of our dismissal. They argue that the issues raised by them have not been resolved and that they are still under a gag order. We disagree.

When review of the second order became desirable, the better practice would have been to file a second petition for a writ of certiorari, not attempt to reopen a case seeking review of a quashed order. Nevertheless, we have considered the petitions on their merits.

The second order does not appear to go any further than Section 905.27, Florida Statutes (1981). No conduct is illegal under this order that would not be also illegal under Section 905.27. The respondent has assured us that:

[T]he new Order is but a public announcement of the restriction placed upon the members of the grand jury and the witnesses from speaking about the testimony and merely reflects the intent and purpose of § 905.27 Florida Statutes.

We conclude that the newspapers are not “gagged”; nor is their access to news sources in any way limited by the respondent’s second order; nor is their ability to gather and publish news impaired or curtailed by the order, except as limited by Section 905.27. We therefore deny the motions for reconsideration.

ERVIN and WIGGINTON, JJ., concur.


text:
    William KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AJ-436.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we find no reversible error.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant, Appellant, v. Gerald F. BATCHELDER and Doris E. Batchelder, Defendants, Appellees.
    No. AL-446.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.

      H. Franklin Perritt, Jr. and Gerald W. Weedon, of Marks, Gray, Conroy & Gibbs, Jacksonville, for defendant, appellant.
    James T. Terrell, of Brown, Terrell & Hogan, P.A., Jacksonville, for appel-lees/plaintiffs; Fred M. Abbott, Jacksonville, for defendants, appellees.
   WIGGINTON, Judge.

Government Employees Insurance Company (GEICO) appeals from the non-final order of the trial court declaring the Bat-chelders, defendants in the tort action below, to be covered by a policy of automobile insurance issued them by GEICO, and entitled to be defended by GEICO. We have jurisdiction. Rule 9.130(a)(3)-(C)(iv), Fla.R. App.P. (1982).

The issue raised by GEICO is whether the trial court erred in finding that the injury arose out of the “ownership, maintenance or use of an automobile,” thereby bringing it within the policy coverage. We affirm, as the circumstances satisfy the three-prong test set forth in National Merchandise, Inc. v. United Service Automobile Association, 400 So.2d 526 (Fla. 1st DCA 1981).

On October 10, 1980, the plaintiff below suffered a serious eye injury while a passenger in a pickup truck owned by the Batchelders. The injury occurred when a beer bottle exploded, sending fragments of glass throughout the cab of the truck. The driver at the time was the Batchelders’ son.

From depositions taken prior to the declaratory judgment, it was revealed that approximately six weeks before the accident, the Batchelders’ daughter left two bottles of beer under the seat of the truck. The bottles remained under the seat while the truck was driven on a regular basis to and from work by Mrs. Batchelder. While at work, the truck was parked in an uncovered parking area.

The day before the accident, Mrs. Bat-chelder drove the truck to work as usual. During the trip, one of the bottles rolled out and hit her on the foot. She put the bottle on the seat where it remained the entire day.

The following day, Mrs. Batchelder again noticed the bottle on the seat, but failed to dispose of it. Instead, she placed it back under the seat, later stating that the bottle was the same one that had been in the truck for the past six weeks.

That night the Batehelders’ son and the plaintiff drove the truck to a football game. En route, the plaintiff noticed the bottles rolling out from beneath the seat and was forced to put them back under the seat on at least one occasion. Before arriving at the game, the boys were stopped by a police officer for a traffic violation. As the truck came to a stop, the bottles again rolled out, but when the plaintiff attempted to secure them, one of the bottles exploded, causing the injury to his eye.

Suit was filed against the Batehelders and GEICO. GEICO subsequently denied coverage under the policy and filed a cross claim and declaratory action alleging that there was no coverage and no duty to defend. The trial court found coverage for the accident did exist, plus a concomitant duty to defend. This appeal followed.

GEICO argues that the truck was merely the physical situs of the accident, and the injury therefore did not arise out of the ownership, maintenance or use of the automobile. GEICO claims the injury clearly did not arise from the “ownership” or the “maintenance” of the vehicle, as those terms have been defined; but more specifically, it argues the injury did not arise from the “use” of the vehicle, as “use” is determined under the National Merchandise test.

For an injury to fall within the “use” coverage of a policy, we said in National Merchandise:

“(1) The accident must have arisen out of the inherent nature of the automobile, as such;
“(2) The accident must have arisen within the natural territorial limits of an automobile, and the actual use ... must not have terminated;
“(3) The automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury ... (citation omitted)”

400 So.2d at 532. Under the circumstances of the instant case, the first prong has been satisfied. • The “inherent use” of a vehicle includes its use to transport or store items, either commercial or personal in nature. Therefore, the trial court did not err in finding that “the transportation of unopened bottles of beer in the Batehelders’ vehicle ... was within the scope and inherent nature of the vehicle as used by different members of the family for personal [albeit not primary] use.”

The second prong of the test requires that the accident occur within the territorial limits of the vehicle and that the use not have terminated. Here, as in National Merchandise, the accident obviously occurred within the vehicle, and the transportation had not been completed, but merely suspended.

Finally, the third prong requires a causal connection or relation between the use of the vehicle and the accident. This prong requires something far short of proximate cause and has been defined as “some connection” or a “nexus” between the two. Padron v. Long Island Insurance Company, 356 So.2d 1337 (Fla. 3d DCA 1978); Auto-Owners Insurance Company v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976). Contrary to GEICO’s position, the truck was more than the mere “physical situs” of the accident. The heat generated in the interior of the truck when parked in the sun for long hours over a six-week period, in conjunction with the movement of the truck, doubtless directly contributed to the explosive nature of the beer bottle. The explosion of the bottle was not a “remote or mere ‘intervening event bearing no substantial or direct relation to the use of the vehicle.’ ” National Merchandise, at 532; Valdes v. Smalley, 303 So.2d 342, 345 (Fla. 3d DCA 1974), petition for cert. discharged, 341 So.2d 975 (Fla.1976).

The facts having satisfied the three-pronged test in National Merchandise, the trial court did not err in declaring liability coverage under the policy for the injury alleged in the complaint, and a duty on the part of GEICO to defend its insureds, the Batchelders. The declaratory judgment is therefore AFFIRMED.

MILLS and ERVIN, JJ., concur.

      . Under Section I of the policy of automobile insurance issued to the Batehelders, GEICO would pay damages the Batehelders would become legally obligated to pay because of “bodily injury, ... arising out of the ownership, maintenance or use” of the owned automobile.

      . Liability arising out of “ownership” generally occurs by the vicarious liability of the owner for any permissive user or for liability which arises out of the title to the automobile. Couch on Insurance 2d, Meaning of Ownership § 45.-62. “Maintenance” liability covers injuries arising from the act of repairing the covered automobile. Id., § 45.63; Auto-Owners Insur-anee Company v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976). We do not reach GEICO’s argument concerning ownership and maintenance because we hold the injury arose from the use of the truck.

      . Although National Merchandise clearly involved a commercial use of the vehicle, our holding was not so narrowly predicated on the “primary” use of the vehicle, but on a use practically and conceivably related to an automobile. Thus, it contemplates both personal and commercial uses of a vehicle.


text:
    Sonia FONTANEZ, Petitioner, v. AAMCO AUTOMATIC TRANSMISSION CENTER, a/k/a AAMCO Transmissions, owned and operated by Leruco, Inc., Respondent.
    No. AN-116.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    Mary M. Callaway, Pensacola, for petitioner.
    No appearance for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

PER CURIAM.

The petition for writ of certiorari is DENIED.

MILLS, ERVIN and WIGGINTON, JJ., concur.