author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Mark AMATO, Appellee.
    No. 81-800.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Peter A. Proly of the Law Offices of Riley & Proly, Port Richey, for appellee.
   GRIMES, Judge.

The state appeals from an order suppressing appellee’s confession and certain tangible evidence on the ground that appellee and a co-defendant were unreasonably detained following a lawful stop. In the order of suppression, the court made the following findings:

1.That at about 4:00 A.M. on 21 November, 1980 Trooper R. Hurst, Florida Highway Patrol, made a lawful traffic stop of the automobile driven by Defendant, MARK AMATO, and also occupied by Co-Defendant, Windish, when Trooper Hurst observed said vehicle travelling in excess of the posted speed limit on U.S. Highway 19 in Pasco County, Florida;
2. That upon approaching the vehicle Trooper Hurst observed a large quantity of cigarettes contained in cartons and boxes in the back seat of Defendant Mark Amato’s vehicle;
3. That under the circumstances Trooper Hurst had a founded suspicion that the cigarettes might have been either the fruits of a recent burglary and theft, or might have been contraband untaxed cigarettes, and accordingly Trooper Hurst was justified in temporarily detaining both Defendants for a brief time to investigate the matter;
4. That Trooper Hurst immediately contacted the Sheriff’s Office and learned that there was no report of a recent burglary involving the theft of cigarettes;
5. That upon the arrival of backup units from the Sheriff’s Office, police officers backtracked the Defendant’s route South on U.S. Highway 19, but found no evidence of a burglary or theft of cigarettes at any of the places of business along Defendant’s path;
6. That Trooper Hurst also contacted the dispatcher for Department of Alcohol and Tobacco, who dispatched Agent White from bed in his home in Brooks-ville some 30 to 35 miles from the scene of the stop, to determine if the cigarettes bore Florida tax stamps;
7. That while awaiting the arrival of Agent White of the Department of Alcohol and Tobacco, Trooper Hurst himself entered Defendant Amato’s vehicle, examined the cigarettes, and observed that they appeared to have Florida tax stamps;
8. That throughout the detention Defendant Amato and Defendant Windish were separated, placed uncuffed in separate police cars, and were detained for a period of at least one hour after the initial stop, prior to the arrival of Agent White at the scene during which time both Defendants were questioned separately after Miranda by Trooper Hurst, initially, and then by Detective Phillips with both defendants denying criminal conduct.
9. That upon his arrival at the scene, Agent White examined the cigarettes and determined that they contained proper Florida tax stamps;
10. That after examining the cigarettes, and determining that the cigarettes were properly tax stamped, the detention of the Defendants continued while Agent White read each Defendant Miranda, and interrogated each defendant separately, attempting to determine if the cigarettes were stolen in a recent burglary.
11. That after the officers had investigated the possibility of a burglary and theft, and were unable to uncover any evidence that the cigarettes in Defendant Amato’s car were stolen, and after Agent White had determined that the cigarettes were properly tax stamped, the continued detention and interrogation of the defendants from that point became an illegally prolonged detention;
12. That defendants were detained for a period of at least one hour and fifteen minutes prior to the Defendant Amato’s confession, which confession provided the probable cause to arrest Defendant Amato.

The record fairly supports the findings of fact outlined above, though Trooper Hurst actually testified that the tax stamps he examined were smeared so that he could not tell whether they were genuine. However, certain additional facts should also be noted. When Trooper Hurst first asked Mr. Amato where he obtained the cigarettes, he stated that he had bought them from a man in the parking lot of the Crown Lounge for $900. He said he had paid one half the purchase price in cash, but he did not know the name of the seller. Later, he told Detective Phillips that he had paid $500 in cash and owed an additional $300. The co-defendant Windish simply said that .the cigarettes were in the car when Amato picked him up. After Agent White of the Department of Alcohol and Tobacco arrived at the scene, he looked at the cigarettes through the car window and then asked Amato for the invoice. When Amato said he did not have an invoice, White went back to the vehicle to examine the cigarettes and found that they appeared to have proper tax stamps. He asked Amato where he had gotten the cigarettes, and Amato responded that he had purchased them “from some guy in the parking lot of the Crown Lounge.” White next addressed Windish who declined to make a statement. While White was interrogating Windish, one of the deputies advised White that Amato wished to talk with him privately. Amato then confessed to White that he and Windish had stolen the cigarettes. The time which elapsed between White’s arrival at the scene and Amato’s confession was estimated to be from five to ten minutes.

The court found and appellee has conceded that the detention was proper until Agent White examined the cigarettes to see if they were properly stamped. Thus, the narrow issue is whether the police were justified in holding the suspects for the approximately five additional minutes necessary for Agent White to question them. We believe that they were. Agent White was new on the scene. When he determined that the tax stamps appeared to be genuine, the possibility of theft became all the more likely. Appellee had related an incredible story of how he acquired the cigarettes, and he was not even consistent with respect to its details. The reasonableness of an investigatory detention depends not only upon its length but on the circumstances which surround it. State v. Merklein, 388 So.2d 218 (Fla.2d DCA 1980), review denied, 392 So.2d 1377 (Fla.1981). We hold that under the circumstances presented in this case, the police had not unreasonably detained the suspects by the time ap-pellee made his confession.

Accordingly, we reverse the order of suppression and remand the case for further proceedings.

SCHEB, C. J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    Lee SCARFONE, Appellant, v. Gerald J. SILVERMAN, Appellee.
    No. 81-826.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    George W. Phillips, Tampa, for appellant.
    Ira F. Markowitz of Courshon & Berk, P.A., Miami, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves a consideration of the proper function of Florida Rule of Civil Procedure 1.150.

Appellant sued appellee for breach of a contract entered into by Peter J. Rundle and Norman P. Johnson, on the one hand, and appellee, on the other. The contract read as follows:

In consideration of $1.00 and other good and valuable consideration in hand paid, we [Johnson and Rundle] hereby release you [Silverman] both individually and as Trustee of and from any claim, demands, debts, actions, causes of actions that we may have had, now have or may hereinafter have against you connected with or related to the above captioned Property.
The other valuable consideration for the release being given you by the undersigned is your agreement to pay to us the sum of twenty thousand dollars ($20,-000.00) U.S. from the proceeds of the sales, of the Property when made which payment is conditioned however as follows:
1) Before any portion of such payment is paid to us any Mortgages now or hereafter created upon the Property for either land acquisition, development or otherwise (except Mortgages that may encumber all or a portion of the Property for the purpose of financing the purchase of the Property from you) are paid and satisfied.
2) All costs and expenses connected with or related to all or portions of the Property are paid and satisfied including without limitation brokerage commission, attorney’s fees, direct and indirect overhead expenses connected with the sale, financing and development of all or portions of the Property including without limitation to your travel and telephone expenses related thereto.
3) After the payment of all of such expenses the first proceeds shall be paid to us to the extent of the amount above set forth which payment shall be deemed as an expense of your operation.
In addition to the payment above set forth you agree that should we bring you an offer to purchase all or portions of the Property and same is accepted by you and a Closing take place thereon; upon such Closing you will pay us a sum equal to 7'/2% of the Purchase Price.

Appellant alleged that Rundle and Johnson had assigned their rights under the contract to him, that appellee had sold portions of the real property at a profit within the meaning of the contract, and that although all conditions precedent for the payment of the $20,000 had been met, appellee had refused to pay him that sum. In his answer, appellee raised the affirmative defense that appellant could not enforce the contract because neither Rundle nor Johnson were licensed real estate or mortgage brokers within the State of Florida at the time of the transaction.

Following a request for admissions which established that in fact Rundle and Johnson were not registered real estate or mortgage brokers at the time of the execution of the contract, appellee filed a motion for summary judgment together with an affidavit stating that the $20,000 referred to in the contract was a finder’s fee to be paid to Rundle and Johnson. Appellee then filed a sworn motion to strike the complaint pursuant to rule 1.150, asserting again that the cause of action was for a finder’s fee to be paid to Rundle and Johnson and that Run-dle and Johnson were neither employees of appellee nor licensed as real estate or mortgage brokers. In response, appellant filed the affidavit of Mr. Johnson in which he stated that neither he nor Rundle had purported to act as a real estate broker in connection with the transaction out of which the contract arose and that the $20,-000 was never intended by the parties to represent a real estate brokerage commission or finder’s fee. Johnson further stated that he and his brother together with Run-dle originally planned to purchase the property and had at one time actually placed a purchase deposit on it with its former owners, Cameron-Brown Company, which was later returned. He said that it was contemplated that Rundle would become a 49% owner of the property acquired by appellee from Cameron-Brown as reflected by a copy of a letter from appellee’s attorney attached to the affidavit. Finally, he recited that the consideration for the obligation of appellee to pay $20,000 to him and Rundle was “a relinquishment by them of their rights to purchase the property and also reimbursement to them' for expenses incurred on behalf of Defendant, including attorney’s fees, travel expenses, real estate broker expenses, color photographs and miscellaneous expenses.”

Both the motion for summary judgment and motion to strike the complaint were called up for hearing. The court did not pass on the motion for summary judgment. However, the court did enter an order which recited that “after hearing argument of counsel, review of the pleadings, Affidavits and testimony and being otherwise fully apprised in the matter, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion to Strike Complaint is hereby granted.” Subsequently, the court entered final judgment for appellee, and appellant has appealed that judgment.

Rule 1.150 reads as follows:

(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, he may move to strike said pleading or part thereof before the cause is set for trial and the court shall hear said motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.
(b) Same — Contents. The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit. No traverse of the motion shall be required.

The rule has no counterpart in federal practice. It had its origin in rule 22 of the Revised Common Law Rules which the Florida Supreme Court promulgated in 1936. See Guaranty Life Insurance Co. v. Hall Brothers Press, Inc., 138 Fla. 176, 189 So. 243 (1939). Yet, even prior to the adoption of rule 22, the supreme court had declared that courts had an inherent right to strike sham pleadings. Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934). At the same time the court cautioned that pleadings should not be stricken as sham “unless the falsity thereof clearly and indisputably appears.” 117 Fla. at 71, 157 So. at 193. In a later opinion the court noted that motions to strike as sham should not be granted under circumstances when a motion for summary judgment could not be granted. Meadows v. Edwards, 82 So.2d 733 (Fla.1955). The fact that the court might perceive that a party’s pleading has little prospect of success does not justify striking it as sham. Reif Development, Inc. v. Wachovia Mortgage Co., 340 So.2d 1267 (Fla. 4th DCA 1976). As another of our sister courts explained:

Pursuant to this rule and its predecessor, it has been held that in order to justify the striking of a pleading for being sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact. In other words, a pleading may be stricken as a sham only where it is shown to be palpably or inherently false. A hearing on a motion to strike is not a hearing to try the issues but to determine whether there are any genuine issues to be tried.

Slatko v. Virgin, 328 So.2d 499, 500 (Fla.3d DCA 1976).

Appellant contends that the court should not have interpreted the contract as one which provided for the payment of a real estate commission without first ascertaining the intent of the parties by hearing all of the material evidence concerning the object or purpose of the contract and the surrounding circumstances under which it was signed. He further complains that the court totally ignored the affidavit of Norman Johnson which stated that the $20,000 payment contemplated by the contract did not arise from services for which real estate brokers and salesmen are licensed to perform. Appellee relies primarily upon the presumption of correctness which attaches to a trial court’s judgment and asserts that appellant has failed to present a sufficient record to demonstrate error. He points out that apparently there was no court reporter at the hearing on the motion to strike and that thus we have no record of what occurred.

There is nothing in the contract itself which leads to the conclusion that the $20,000 payment provision was for services which Florida law requires a licensed real estate broker to perform. While the last paragraph of the contract calling for the payment of P/2% of the purchase price of the property if appellee sold it does sound like a finder’s fee, appellant is not making his claim under that paragraph. Perhaps even that paragraph might have been enforceable if Johnson and Rundle had become licensed before performing any services. Compare Bradley v. Banks, 260 So.2d 256 (Fla.3d DCA 1972), with Geneva Investment, Ltd. v. Trafalgar Developers, Ltd., 274 So.2d 581 (Fla.3d DCA), cert. dismissed, 285 So.2d 593 (Fla.1973). In any event, Johnson’s affidavit clearly creates an issue of fact with respect to the genesis of the $20,000 obligation. Therefore, it appears that there are real issues which should be decided at a trial rather than at a hearing on a motion to strike for sham.

The only matter which gives us pause is that we do not have a transcript of the testimony taken at the hearing. While the appellate decisions which discuss rule 1.150 seldom address the desirability of taking testimony, the rule by its terms contemplates this possibility. Apparently, the rule authorizes the court to hear testimony on the limited issue of whether the pleadings of a party are manifestly false. It cannot be intended to permit a mini-trial on the merits of the case. Here, the attorneys for the parties have agreed that the only testimony presented to the court was that of appellee himself. Presumably he only reiterated what he had already said in his affidavit, but, in any event, we cannot see how one party’s pleadings can be stricken as false simply because the opposing party says they are. If appellant had submitted no evidence whatsoever to support his allegations, perhaps the court would have been acting within its discretion to accept what appellee said and strike appellant’s pleadings. However, the affidavit appellant submitted directly contradicted appellee’s position. Under these circumstances we do not believe that this was the kind of a case that rule 1.150 was designed to cover.

Accordingly, we reverse the judgment and remand the case for further proceedings.

RYDER and DANAHY, JJ., concur.


author: PER CURIAM.

text:
    Raymond A. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 81-994.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment of the circuit court is affirmed, but the case is remanded for resen-tencing. The sentence incorrectly failed to provide the period of credit time to be allowed appellant as required by section 921.-161(1), Florida Statutes (1979). Shemwell v. State, 391 So.2d 218 (Fla.2d DCA 1980). Appellant need not be present at resentenc-ing.

HOBSON, A.C.J., and BOARDMAN and OTT, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Robert M. COOPER, Jr., Appellee.
    No. 81-1082.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      James R. Dirmann of Dirmann & Scott, Sarasota, for appellant.
    Kenneth L. Connor of Gibson & Connor, Lake Wales, for appellee.
   BOARDMAN, Acting Chief Judge.

The final judgment against appellant, the Florida Department of Transportation (DOT), is affirmed. There was evidence that the intersection accident was caused in part by the absence of a stop-ahead sign which was dictated by the Manual on Uniform Traffic Control Devices for Streets and Highways adopted by appellant and which was even included in appellant’s construction drawings. The trial court’s award of costs and post judgment interest was correct under our decision in State Department of Transportation v. Knowles, 388 So.2d 1045 (Fla.2d DCA 1980), which followed State Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA), cert. denied, 364 So.2d 892 (Fla.1978), and we decline to recede from Knowles notwithstanding the conflicting opinion in Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla.3d DCA 1981). The remaining points raised by the DOT have been considered and are also without merit.

AFFIRMED.

GRIMES and DANAHY, JJ., concur.


text:
    Brenda Ann CULPEPPER, Appellant, v. James William CULPEPPER, Appellee.
    No. 81-1330.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      Rick S. Lockenbach of Bay Area Legal Services, Inc., New Port Richey, for appellant.
    Norman Johnson Stewart, Jr. and W. Lowell Bray, Jr. of Allgood, McPherson, Stewart, Bray & Misemer, New Port Richey, for appellee.
   GRIMES, Judge.

This is an appeal from an order changing the custody of the parties’ minor child.

During their marriage Mr. and Mrs. Cul-pepper had one child, Alan, who was born on August 23, 1975. Subsequently, they divorced on March 26, 1977. The judgment of dissolution incorporated a settlement agreement which gave custody of Alan to Mrs. Culpepper with Mr. Culpepper having the right to reasonable visitation. On June 20, 1980, Mr. Culpepper filed a petition for modification of custody. Following a hearing, the court directed that he have permanent custody of the child.

In order to properly decide the case, it is necessary to consider the facts in depth. Mrs. Culpepper testified that she had been the sole custodial parent of Alan except for a few weeks when she was suffering from the complications of a pregnancy which resulted in the birth of a child, Dawn, out of wedlock, on March 28, 1980. She said that later in 1980 for several months Alan had visitation with his father from Wednesday until Sunday of each week. These arrangements ceased, and the visitation was changed from Friday to Sunday when Alan transferred from a parochial school for which his father paid to a public school closer to Mrs. Culpepper’s home.

Mrs. Culpepper testified that she had begun working as a cashier at a convenience store in February 1981 and had since been promoted from clerk to assistant manager. She said that because of her employment she was able to take care of her children’s material needs including insurance. She worked from 6:00 a. m. to 4:00 p. m. two days a week and from 3:00 p. m. to 11:00 p. m. three days a week. She lived in a three bedroom mobile home with her two children, her mother, and her nine year old sister. She stated that either her mother or a girl friend who also had a child took care of Alan and Dawn while she was working.

Mrs. Culpepper admitted that for one month during the year prior to the hearing, she had allowed an unmarried man to live in the mobile home with his daughter because he had lost his lease and had nowhere to go. She denied having sexual relations with him. She also denied ever having an abortion. Finally, she stated that she was engaged in no regular activities other than her work and caring for her family.

Mrs. Culpepper’s mother testified that she had resided with her daughter since the end of January 1981, that they shared expenses equally, and that Mrs. Culpepper had been well able to provide for the material needs of her son. She also spoke of the affection between Alan and his sister Dawn.

Mr. Culpepper testified that he had exercised primary custodial care of Alan for a month during the time of Mrs. Culpepper’s pregnancy complications. He said he changed jobs recently and now worked for Paradyne Electronics. He stated that if he were granted custody, his parents would be in a position to take care of Alan when he was absent at his work. He admitted that when he had been in the service, he sometimes did not provide total support because of his neglect to fill out dependency allotment papers. He also admitted to having habitually used marijuana in the past, sometimes in Alan’s presence. However, he said he had given this up and had not smoked marijuana for over a year. Finally, he testified that Mrs. Culpepper had told him that at some time she had an abortion.

Debra West, a counselor for the Department of Health and Rehabilitative Services who was responsible for preparing a home study in the case, was qualified as an expert in child welfare. She testified that when she did her study, the Wednesday-Sunday visitation was in effect. Thus, she had recommended “split custody” in her home study report. She said, however, that because this visitation had changed so that Mr. Culpepper was seeing his son considerably less hours of the week, she would now recommend that Mrs. Culpepper remain the primary custodial parent. She gave as reasons for her recommendation that she favored continuity and believed that Alan was looking to his mother as the custodial parent. She said she had no reservations concerning Mrs. Culpepper’s suitability as a parent because the child was receiving more than adequate care and Mrs. Culpepper’s mobile home was a satisfactory residence. She testified that she believed that Mrs. Culpepper was maturing and that her goals were to provide Alan and Dawn with a stable and secure home environment. She also stated that Mrs. Culpepper had exercised sound judgment on behalf of her children in deciding not to change jobs because the longer hours would not be in the children’s best interest. She said that she found Alan to be very loving and attached to his mother and his half sister.

Ms. West also testified that Mr. Culpep-per and Alan were very attached to each other and that Alan felt very secure in his father’s presence. She said that Mr. Cul-pepper was an excellent father who had a stable and secure home environment with his parents. She noted that he was a hard worker with a well planned future. Her home study disposition report which was filed with the court was complimentary of both parents.

This case comes to us with certain legal principles favoring the position of each party. In support of affirmance, it is well settled that the trial judge has broad discretion in matters of custody. Grant v. Corbitt, 95 So.2d 25 (Fla.1957). A custody order on appeal carries a presumption of correctness which should not be disturbed absent a showing of an abuse of discretion. In re Gregory, 313 So.2d 735 (Fla.1975). On the other hand, a court does have less discretion in modifying the custody provisions of a final judgment of dissolution than in making the original custody determination. Garvey v. Garvey, 383 So.2d 1172 (Fla.2d DCA 1980). Before the court can change custody, the evidence must show that there has been a substantial change in the conditions of the parties and that the best welfare of the child will be promoted by the court’s action. Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1117 (Fla.1980). An improvement in the circumstances of the noncustodial parent by itself does not warrant modification. Collins v. Newton, 362 So.2d 174 (Fla. 2d DCA 1978).

In this case, the only change of real consequence occurred when Mrs. Cul-pepper had an illegitimate child. The moral unfitness of a party may be considered in a custody case so long as it has a direct bearing on the welfare of the child. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Here, however, admitting the immorality of having a child out of wedlock, there is still no evidence that it adversely affected five year old Alan. In fact, the record reflects a marked degree of affection between the two young children. In ordering the change of custody, the judge alluded to a certain lack of stability in Mrs. Culpepper and referred to the caseworker’s comment that she had been going through a period of transition. Ms. West did mention a transition period in Mrs. Culpepper’s life in her report, but the transition to which she referred was for the better. She also said that Mr. Culpepper was going through a favorable transition.

It is obvious that both parties are fit persons to have custody of their child. However, when the child was very young, the judgment of dissolution gave him into the custody of Mrs. Culpepper, and he has lived with her as the primary custodial parent ever since. There is no evidence that Alan has been adversely affected in any way by Mrs. Culpepper’s conduct. Consequently, Mr. Culpepper has simply failed to meet his burden of proving the substantial change of circumstances necessary to justify the modification of custody.

REVERSED.

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


author: BOARDMAN, Judge.

text:
    Stephen PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1570.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Stephen Patterson was adjudicated guilty of burglary and armed robbery. He appeals his concurrent sentences of three years’ mandatory imprisonment followed by two years in a community control program. We affirm in part and reverse in part.

Appellant raises two points on appeal. His first argument is that he cannot be given mandatory three years’ imprisonment pursuant to section 775.087, Florida Statutes (1979), because the sentencing provisions of section 958.05, Florida Statutes (1979) (The Youthful Offender Act), were the exclusive penalties available to the sentencing judge. Our sister court has recently endorsed this argument in Whitlock v. State, 404 So.2d 795 (Fla.3d DCA 1981).

We agree with the well-reasoned opinion in Whitlock and strike the statement in the judgment and sentence for the robbery that the three year mandatory minimum applies.

Appellant also claims that his sentences are illegal under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Because we have recently held that the Youthful Offender Act creates a statutory exclusion to the ruling in Villery, Riley v. State, 407 So.2d 967 (Fla.2d DCA 1981), we reject this argument.

Accordingly, appellant’s judgments and sentences are AFFIRMED but the provision for a mandatory three years’ imprisonment is stricken.

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


text:
    Mark E. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1639.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant contends that the court should have given him credit for the period of time he was in custody pursuant to his commitment as a mentally disordered sex offender under Chapter 917. We agree. § 917.-014(1), Fla.Stat. (1979); See McGuirk v. State, 382 So.2d 1235 (Fla. 2d DCA 1980).

Accordingly, we affirm the judgment but remand the cause with directions that the court give appellant credit for the time he spent in the mentally disordered sex offender program.

HOBSON, A. C. J., and BOARDMAN and OTT, JJ., concur.

      . Section 917.014(2) had provided that “the provisions of this section shall stand repealed on July 1, 1981.” However, Chapter 81-293, Laws of Florida, amends section 917.014(2) to provide that “the provisions of this section shall stand repealed on July 1, 1983.” Thus, section 917.014(1) was in full force and effect on July 6, 1981, the date of appellant’s sentencing.


author: ERVIN, Judge.

text:
    John R. McCALL, Appellant, v. DICK BURNS, INC. and Federal Insurance Company, Appellees.
    No. YY-494.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.

      Emil Jaczynski, Fort Lauderdale, for appellant.
    Frank M. Hamilton of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   ERVIN, Judge.

Appellant John R. McCall suffered a myocardial infarction (heart attack) while on the job, but his workmen’s compensation claim was found to be noncompensable, because the heart attack was the result of a pre-existing heart disease and not due to an unusual, non-routine strain or over-exertion. The deputy commissioner’s order also appears to suggest that there was not a precise temporal correlation between the time of McCall’s exertion and his disabling heart attack. We reverse the determination that the heart attack was not compen-sable and remand this case for further proceedings.

The record indicates that fifty-five year old John McCall had worked in construction oriented jobs most of his life, including among other things, as a welder and a master mechanic. Although McCall and his personal physician testified that he had never suffered from a known previous heart condition, post-injury examinations by other doctors indicated that McCall had been subject to coronary artery disease. The disease was non-disabling, but it was becoming progressively worse, causing his arteries to become blocked.

Approximately eight months before suffering his heart attack, McCall was successful in obtaining work with appellee Dick Burns, Inc., a construction equipment company. McCall testified that he was hired as a master mechanic and equipment supervisor and that his actual duties included supervision of company mechanics and equipment damage assessment. According to the testimony of one of the people that he supervised, his normal duties apparently involved hard work, but he clearly was more of a supervisor than a laborer.

On Tuesday, February 13, 1979, McCall and a crew of workers commenced work on a large outrigger that extended from a crane for the purpose of support. The outrigger had a 3.5 inch diameter bolt with a hole in it. The bolt was frozen, and McCall ordered his crew to place a bar through the hole for leverage. After using a lubricant to loosen the bolt and a sledge hammer on the leverage bar, the bolt still wouldn’t move. McCall told his crew to attempt loosening the bolt by hand with the bar.

The workers strained so hard on the bolt that one of them stood aside after severely straining his back. At this point McCall assisted his crew by lifting up and down on the bolt with a sudden jerking action for ten minutes. Suddenly, McCall felt a ripping pain across his chest, lasting ten minutes. McCall testified that he had never engaged in this type of work or such strenuous work.

Although the pain subsided, he continued having burning, aching pains for the rest of the day. His pains continued on Wednesday and Thursday morning. He went home Thursday during the noon hour and then drove his pick-up truck to Miami on business. By the time that he reached his destination he was in such pain that he couldn’t even get out of the truck. Subsequently he was taken home and then to his family doctor at the hospital where he remained for twelve days.

The deposition testimony of three doctors was presented to the deputy. The deputy cited testimony by McCall’s personal physician, Dr. Anthony Vento, who diagnosed an acute inferior wall myocardial infarction with a secondary congestive heart failure, all of which stemmed from the pre-existing arteriosclerotic heart disease. Dr. Henry Cooper, a heart specialist, agreed, finding a relatively infinitesimal inferior wall infarction. He believed that the claimant suffered no permanent disability due to the infarction. Dr. Cooper’s testimony discounted any relationship between McCall’s physical activities and the infarction. He noted that the pain suffered by McCall was angina caused by stress, but it was merely temporary in nature, subsiding within a few minutes after the stress was halted.

On the other hand, the deputy also cited the findings of Dr. Orlando Maytin, another heart specialist. He indicated that the heart disease was the partial cause of the infarction. However, he noted that unusual stress could have triggered the infarction. Based on a hypothetical question and within reasonable medical probability he stated that the heavy lifting actions could easily have triggered McCall’s infarction. The testimony of the medical experts seems hopelessly in conflict, and while the deputy gave a comprehensive written recitation of the doctor’s testimony, it appears he did not make specific findings as to whether McCall’s physical exertion medically caused his problems.

The deputy did find that the heart attack was not compensable, primarily based on the testimony of the claimant and that of one of the claimant’s laborers, Gordon De-Vore. Relying on DeVore’s testimony the deputy commissioner found that McCall always worked on heavy equipment which is heavy work, and therefore, it was difficult to view McCall’s exertion as unusual. The deputy also determined that the myocardial infarction occurred at a time when McCall wasn’t performing any heavy duties. These findings all seem to relate to the lack of the existence of a legal causal connection between McCall’s work and heart attack.

That both a medical and legal cause for claimant’s heart attack must be established and supported by competent substantial evidence seems apparent from a review of numerous Supreme Court decisions on the subject of compensable heart ailments. This is essential in cases such as the one before us because of evidence of the prior weakness of McCall’s heart due to the non-disabling heart disease.

The reasoning behind the requirement of both a legal and medical causation analysis in heart cases, as well as in pre-existing disease cases, stems in good part from the view that the natural progress of a disease might precipitate a collapse during working hours. In such cases absent proof of some identifiable effort on the job which within reasonable medical probability can be said to have a causal connection to the collapse, there arises serious doubt that the collapse was either accidental or causally related to the employment. See 1B Larson, Workmen's Compensation Law § 38.83 at 7-257 to 7-261 (1980).

Consequently, the underpinning of compensable heart attacks in the Florida workmen’s compensation setting is that the heart attack must stem, at least in part, from some specifically identifiable physical activity. Silvera v. Miami Wholesale Grocery Company, 400 So.2d 439, 441 (Fla.1981).

However, not any physical activity is sufficient to sustain a finding of compensability, especially in cases involving a pre-exist-ing heart disease.

When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are com-pensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.

Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 588-589 (Fla.1962). This constitutes the test for legal causation. Proof of this point is geared toward satisfying the requirement that the injury is one “arising out of the employment.” § 440.09(1) Fla. Stat.; Larson, supra, at 7-235.

The Victor Wine court also noted that the strain or over-exertion must be related to the collapse by competent substantial medical testimony. Victor Wine, supra, at 589. Plainly, evidence of medical causation is required. Unfortunately, the requirement of proof of both medical and legal causes has become so intertwined over the years that it becomes easy to lose sight of one of the tests. Accord: Larson, supra, at 7-235. In fact a review of the heart cases in Florida indicates that an exhaustive amount of attention has been given to the legal causation test, but little has been done to focus attention on the medical causation test. Most likely, this may be attributed to the controversial nature of the legal causation requirement.

In analyzing the legal/medical causation dichotomy it has been suggested that the starting point is with the legal causation test. Market Foods Distributors, Inc. v. Levenson, 383 So.2d 726, 727 (Fla. 1st DCA 1980), petition for review denied, Levenson v. Market Foods Distributor, 405 So.2d 974 (Fla.1981). Thus, the analysis centers on whether the over-exertion is one that is unusual or non-routine in reference to the employee’s regular job duties. “In determining whether a particular activity is not routine, we must look to the duty performed by the employee himself rather than by his fellow workers.” Richards Department Store v. Donin, 365 So.2d 385, 386 (Fla.1978).

Applying the Victor Wine test for legal causation to the record in this ease, we find a lack of competent substantial evidence to support the deputy’s finding that McCall did not perform an unusual, non-routine exertion. McCall’s work appears primarily supervisory in nature. Even if McCall performed stressful work on heavy equipment, that does not detract from the fact that McCall testified that he had never strained himself so hard on the job and possibly during his entire life. This factor seems entitled to at least some weight in light of the fact that one of McCall’s laborers may have injured his back by performing the same work. The record demonstrates that the strain and over-exertion that McCall suffered in attempting to jerk the outrigger bolt free was both unusual and non-routine.

The deputy’s order also states that the infarction occurred at a time when McCall was not performing any heavy work. Presumably, this refers to the pickup truck drive to Miami. This suggests that there must be a precise temporal correlation between the physical exertion and McCall’s heart attack. Unfortunately, the deputy’s decision preceded, and therefore did not have the benefit of, the Supreme Court’s recent decision in Silvera, supra, at 441, in which it was determined that a precise temporal correlation between an unusual, non-routine over-exertion and the onset of a heart injury was not a necessary predicate to a determination of compensa-bility. However, it seems apparent that, while no precise temporal correlation is required, there must be a nexus between the exertion and heart attack.

In Silvera, a sales representative strained himself one evening loading a ship. Early the next morning he was subjected to some emotional torment. Sometime thereafter, he suffered a heart attack. McCall’s situation is factually distinguishable in that he suffered immediate pains from over-exertion on the job in a non-routine activity; that this was the first time in his life that he had ever suffered these problems; that he suffered continuous, intermittent periods of pains in the chest and throat, until his final collapse two days later.

However, in both Silvera and the case at bar a nexus may be found in the sequence of events and proximity in time between the non-routine over-exertion and the heart attack. At the opposite end of the spectrum is City of Miami v. Rosenberg, 396 So.2d 163 (Fla.1981), in which the Supreme Court found that claimant’s heart attack was not compensable. The claimant had no previous symptoms of a heart condition, but he apparently was the subject of a pre-ex-isting, non-disabling arteriosclerotic heart disease.

Rosenberg was subjected to a great amount of emotional torment during a six-month period which culminated in an acute myocardial infarction one weekend. The only specifically identifiable instance of unusual stress or over-exertion apparent from a close reading of the case is that the claimant moved some heavy boxes at some point during the six-month period of stress preceding his heart attack. Compensability was rejected in part based on the lack of a temporal relationship between the physical activity and the heart attack. Id. at 165.

It must also be shown that there is a causal relationship between the strain or over-exertion and the heart attack within reasonable medical probability. Reasonable medical probability may be established by either medical or lay testimony. Scotty’s Inc. v. Jones, 393 So.2d 657, 659 (Fla. 1st DCA 1981); Deck’s, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980). Although lay testimony cannot be used to establish a causal relationship within reasonable medical probability as to conditions and symptoms that are not readily observable, it is of probative value in establishing the sequence of events, actual inability or ability to perform work, pain, and similar factors within the actual knowledge and sensory experience of the claimant. Id. Of course, it is obvious that medical testimony by a qualified doctor is probative of the existence or absence of a causal relationship within reasonable medical probability.

In this case evidence of the sequence of events in attempting to loosen the bolt resulting in immediate pains and, therefore, in a continuous stream of intermittent pain culminating in the myocardial infarction was supplied by the claimant’s testimony as well as that of his co-worker, Gordon De-Vore. When given a hypothetical situation that was somewhat similar to the stress involved in lifting up and down on the bar to loosen the bolt, Dr. Maytin indicated that stress of this nature could have triggered McCall’s chest pains and myocardial infarction. In our view this constitutes sufficient evidence of medical causation. However, the deputy could have relied on Dr. Cooper’s testimony. He made no finding on medical causal connection.

Questions as to the credibility of witnesses and conflicts in the evidence are usually for the deputy commissioner to resolve, especially in cases of expert testimony. Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 at 865-866 (Fla. 1st DCA 1980); see also Glades County Sugar Growers v. Gonzales, 388 So.2d 333, 335 (Fla. 1st DCA 1980). As explained in Rouse v. Wyldwood Tropical Nursery, 392 So.2d 370, 372-373 (Fla. 1st DCA 1981), it would be helpful if the deputy would explain why one expert’s testimony is accepted over that of another. In some cases it is essential that the deputy do so. Id. at 373.

However, in this case the deputy did not make a finding as to the acceptance or rejection of the medical testimony. In fact there is no finding as to the issue of medical causation, apparently because of the deputy’s findings of a lack of legal causation which bans compensation. Due to the fact that we have reversed the deputy’s findings, which in essence found no legal causal connection, the heart attack could be com-pensable based on the pains and sequence of events attested to by the appellant and Dr. Maytin’s testimony. Remand of this case is required so that the deputy may make a finding as to the medical causation issue.

Consequently, if the deputy accepts that medical evidence necessary to establish a causal connection between the accident and heart attack, and rejects Dr. Cooper’s testimony, he will need to apportion out any permanent disability not reasonably attributable to McCall’s accident. Compare Victor Wine, supra, at 589. Compensability for temporary disability and medical benefits is, of course, not subject to the apportionment statute. § 440.02(18), Fla.Stat. (Supp.1978). We, therefore, REVERSE and REMAND for further proceedings not inconsistent with this decision.

WENTWORTH and JOANOS, JJ., concur.

      . McCall’s injury occurred in February, 1979. Since the statutory law in effect at the time of the accident prevails, this claim is governed by the “Workmen’s Compensation Law” in effect in late 1978 and early 1979. Kerce v. Coca-Cola Company—Foods Division, 389 So.2d 1177 at 1177 n.1 (Fla.1980).

      . Q. [Mr. Jaczynski] What did you do for Dick Burns?
      A. [McCall] I was hired as the master mechanic and equipment supervisor.
      Q. What duties did that involve?
      A. Assessing damage for equipment, mechanical problems and regular maintenance, supervising the mechanics, also overlooking the operation of equipment in the field as to operators’ qualifications, machine conditions and so forth.
      (T.R. 23)

      . Q. [Mr. Jaczynski] From your observation, what were Mr. McCall’s duties?
      A. [Gordon DeVore] He was in charge of the mechanics. He was head mechanic.
      Q. What did his duties involve in relationship to stress, strain and labor?
      A. It was an engineering outfit. We worked with some heavy equipment. He had laborers, but it was kind of an off-again-on-again situation whether he had them or not. He had some big equipment we were working on. We’re talking about cranes and bulldozers and stuff, you know.
      Q. From your observation, did Mr. McCall continuously do any heavy type of labor with that equipment?

      A. Just‘ about anything you do with them is heavy labor, you know. He continuously — I wouldn’t say he did it continuously, no. He was more in the lines of telling the other people what to do.

      (T.R.ll) (Emphasis added).

      . See, e.g., Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439, 442 (Fla.1981) (Boyd, J., dissenting) (cites lack of medical testimony regarding causation); City of Miami v. Rosenberg, 396 So.2d 163, 165 (Fla.1981) (cites lack of medical evidence to support causal relationship); Croft v. Pinkerton-Hayes Lumber Co., 386 So.2d 535 (Fla.1980) (involving a stroke and finding compensability based on medical testimony relating stroke to job over-exertion); Richards Dept. Store v. Donin, 365 So.2d 385, 387 (Fla.1978) (citing rule of law in Victor Wine & Liquor, Inc. v. Beasley, infra); and Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 588-589 (Fla.1962).

      . Section 440.02(18), Florida Statutes (Supp. 1978), states in relevant part:
      Where a pre-existing disease or anomaly is accelerated or aggravated by accident arising out of and in the course of employment, only ... the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable with respect to permanent disability or death. Compensation for temporary disability and medical benefits provided by this chapter shall not be subject to apportionment under this subsection.


author: LARRY G. SMITH, Judge. WENTWORTH, Judge,

text:
    Ronald E. PROCTOR, Jr., Petitioner, v. Louie L. WAINWRIGHT, Florida Parole and Probation Commission, and the Delaware Department of Corrections, Respondents.
    No. AG-244.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1982.
    Ronald E. Proctor, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondents.
   LARRY G. SMITH, Judge.

Proctor petitions this court for a writ of habeas corpus seeking his release from a Florida prison on the grounds that while a prisoner in the State of Delaware, he requested disposition of a Florida detainer based on a parole violation, and Florida failed to provide a parole revocation hearing within the time prescribed by the Interstate Agreement on Detainers, Sections 941.45-50, Florida Statutes (1979). We deny the writ.

Petitioner’s reliance upon the Interstate Agreement on Detainers is misplaced. This court has held that Florida’s IAD does not apply to detainers based upon parole violations. Maggard v. Wainwright (Fla. 1st DCA 1981), case no. AE-321, opinion filed January 14, 1982. See also, Wainwright v. Evans, 403 So.2d 1123 (Fla. 5th DCA 1981).

However, although we do not find petitioner entitled to release based upon the grounds urged in his petition, we find it necessary to address the issue presented by the State’s failure, to date, so far as the record before us discloses, to provide petitioner a parole revocation hearing. The following facts appear without substantial dispute from the allegations of the petition and the State’s response to our order to show cause: Petitioner, after being convicted in Florida on four counts of robbery, was sentenced to four concurrent six-year terms on February 28, 1977. On May 8, 1979, he was paroled upon condition, among others, that he would proceed to the State of Delaware for supervision. One of the conditions of his parole and release to Delaware, to which petitioner agreed, was that if permitted to leave the State of Florida he waived “all extradition rights, process and proceedings for return.” Such an agreement is consistent with the provisions of the Interstate compact on parole supervision which provides in part (Section 949.07, Florida Statutes (1979), subsection (3)):

That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken.

The above subsection also provides that the decision of the sending state to retake a person on probation or parole is conclusive and not reviewable within the receiving state. However, consent of the receiving state is required if there are criminal charges pending against the probationer or parolee in the receiving state. Section 949.-07(3).

Petitioner’s parole agreement was further conditioned upon his remaining at liberty without violating the law. That this condition was broken is not in dispute here, in that while in Delaware on parole petitioner entered a plea of guilty to Conspiracy, Second Degree, a Class E felony, and was subsequently incarcerated in Delaware on that charge. Meanwhile, upon advice from the Delaware authorities, the Florida Parole and Probation Commission on June 30, 1980 issued a warrant charging two parole violations. Petitioner remained in custody in Delaware until his return to Florida, pursuant to the parole violation warrant, on August 5, 1981.

The compact on interstate parole and probation supervision does not specify a time within which a parole revocation hearing shall be held after the parolee’s return to the paroling state. Section 949.07. However, it is clear that due process requires a final revocation hearing within a reasonable time. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Such a hearing is also mandated by Florida law as well. Section 947.23(2), Florida Statutes (1979). Morrissey, as well as the statute, Section 947.23(1), also require a prompt preliminary or “probable cause” hearing.

We conclude, however, that under the circumstances here, which demonstrate that petitioner pleaded guilty to a felony offense in Delaware during the time he was present in that state pursuant to his Florida parole, and was returned to Florida by the Delaware authorities, the failure to provide a preliminary parole revocation hearing in Florida upon bis return here would not be grounds for discharge from custody. See Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Here, the petition itself discloses probable cause for petitioner’s return to Florida on the parole violation charge, and he specifically waived extradition to be returned to Florida for that purpose after a hearing before a Delaware court. We find no allegation in the petition which could conceivably be construed as presenting a probable cause issue. Therefore, any error in failing to accord a prompt preliminary hearing upon his return to Florida would constitute harmless error. See Albritton v. Wainwright, 313 So.2d 763 (Fla.1975).

In view of the period of time that has elapsed since petitioner’s return to Florida, our denial of the petition for habeas corpus is expressly conditioned upon petitioner being afforded a final parole revocation hearing by the Florida Parole Commission within a reasonable time. In our opinion, a reasonable time for such a hearing to be held would be thirty days from the filing date of this opinion, unless such time is extended by order of this court for good cause shown on motion of the respondent commission.

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

WENTWORTH, J., concurs specially.

WENTWORTH, Judge,

concurring specially.

I agree with the condition expressed by the majority and would conclude that the petition otherwise has no merit because the petitioner’s parole under § 949.07, Florida Statutes, and waiver of all process and proceedings for return, prevents his reliance upon the specific conditions of Florida’s Interstate Agreement on Detainers. The general applicability of the latter enactment is accordingly not in issue.

      . Section 941.45(3)(a), Florida Statutes (1979), requires trial, on any indictment, information, or complaint on the basis of which a detainer has been lodged against a prisoner, within 180 days after he shall have requested final disposition by notice directed to the appropriate prosecuting officials.

      . The Governor of Florida is authorized by Section 949.07, Florida Statutes' (1979), to enter into a compact on behalf of the state with other states joining therein, providing for Florida probationers and parolees to be released to any other party state for supervision.

      . An attachment to the petition indicates that petitioner received a sentence of seven years on the Delaware conspiracy charge, two years to be served by incarceration, followed by a probationary term.

      . The warrant charged a violation of Condition 2 by virtue of petitioner having changed his residence without consent of his parole supervisor. Attachments to the State’s response indicate that petitioner violated this condition by entering the state of Virginia. A second violation concerning Condition 8, which required petitioner to live and remain at liberty without violating any law.

      . Exhibit 11, attached to the State’s response, indicates that petitioner was released from Delaware on parole to Florida, with a detainer.

      . As noted earlier in this opinion, petitioner waived all extradition proceedings as a condition of his release on parole to Delaware. Therefore, his subsequent waiver before the Delaware court conferred no additional rights upon petitioner, nor did it impose any additional burdens upon the Florida Parole and Probation Commission.


author: RYDER, Acting Chief Judge.

text:
    Robert E. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-426.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1982.
    Jerry Hill, Public Defender, Bartow, R. Michael McMillan and Eula Tuttle Mason, Asst. Public Defenders, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Robert E. Davis appeals from two convictions for attempted first degree murder. We hold that the lower court erred in not granting a new trial after appellant showed that the jury’s request for reinstruction was not communicated to appellant or appellant’s counsel, and we reverse.

After the notice of appeal was filed below, we relinquished jurisdiction for a hearing on motion for new trial to determine whether there was communication with the jury during its deliberation without notice to the prosecutor or defense. Following a hearing, the trial judge denied the motion.

During the hearing below, five of the six jurors recalled speaking to the bailiff in charge of the jury. Of the five jurors that recalled contact with the bailiff, three specifically recalled that they requested rein-struetion by the judge. The other two jurors testified the request for reinstruction specifically related to the different verdicts which could be returned.

One juror testified that the bailiff, upon his return to the jury, informed the jury that the trial judge would not give an answer to their request. The recollection of that event by three other jurors varied as their testimony reveals they recalled that the bailiff reported back either that he could not locate the judge at that moment, or that the judge had agreed to their request for further definition, or that the bailiff informed the jurors that further clarification was not possible.

The bailiff testified that he recalled no contact with the jury, and the trial judge had no independent recollection of the case. Neither counsel recalled notice of a request for information from the jury, and the court reporter had no notes of being called back during jury deliberations.

It is reversible error for the trial judge to deny or give a response to a jury request made during deliberations until trial counsel have been advised and given the opportunity to participate in discussion. Ivory v. State, 351 So.2d 26 (Fla.1977); Caldwell v. State, 340 So.2d 490 (Fla.2d DCA), cert. denied, 346 So.2d 1247 (Fla.1977). The testimony below,' uncontradict-ed as to the jurors’ posing the question, will only support a finding that such a request was made. The testimony of counsel and the court reporter that they did not recall or make notes of any conference during jury deliberations will likewise only support a finding that no such conference took place.

We hold that failure of the lower court to permit counsel to be heard in response to the jury request was reversible error. The judgment is REVERSED and the case REMANDED for a new trial.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Eldon E. KUHNS and W. Scane Bowler, Appellants/Cross-Appellees, v. Harold E. KOOB and Ruth Koob, his wife, Appellees/Cross-Appellants.
    No. 80-2152.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1982.

      John S. Wagstaff of Phillips, McFarland, Gould & Wagstaff, P.A., Clearwater, for appellants/cross-appellees.
    Stephen D. Hughes, Largo, for appel-lees/cross-appellants.
   PER CURIAM.

We affirm on all counts except the denial of attorneys’ fees to Koob for defending the indemnity agreement. The general rule is that an indemnitee is entitled to recover reasonable attorneys’ fees as part of its damages. Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla.3d DCA 1967).

Accordingly, we REMAND to the trial court for this determination.

OTT, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Otis FOWLER, Jr., Appellant, v. Elsa FOWLER, Appellee.
    No. 81-542.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1982.
    Britt Whitaker of Mixon & Whitaker and Fred W. Vollrath, Tampa, for appellant.
    Gasper J. Ficarrotta of Ficarrotta & Fi-carrotta, Tampa, for appellee.
   PER CURIAM.

Otis Fowler, Jr. appeals that portion of the final judgment of dissolution of the parties’ marriage holding him in contempt for failure to deliver their child to his wife. The contempt order contained elements of both criminal and civil contempt. Since the court did not comply with Florida Rule of Criminal Procedure 3.840, that aspect of the order holding appellant in criminal contempt must be reversed. Accordingly, we hereby modify paragraph 13 of the final judgment to provide only that appellant is deemed guilty of civil contempt for failure to comply with the court’s previous orders, and that he is hereby sentenced to the Hillsborough County Jail until such time as the minor child of the parties is returned to appellee.

BOARDMAN, A.C.J., and GRIMES and OTT, JJ., concur.


author: GRIMES, Acting Chief Judge. RYDER, Judge,

text:
    Joseph R. CATES, Appellant, v. STATE of Florida, Appellee.
    No. 81-723.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1982.

      Gregory H. Fisher, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

When is a weapon “securely encased” so that it can be legally carried in a private vehicle? The question is easily stated, but the answer is elusive.

The state charged appellant with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (Supp.1980). At trial, the evidence showed that Officer Leedy stopped appellant on Interstate 275 in St. Petersburg and arrested him for driving while intoxicated. His automobile was towed to the station where it was impounded. After impoundment, Officer Roche conducted an inventory search during which he found a .45 caliber semiautomatic handgun in the console compartment located between the automobile’s front bucket seats. The console had a lift lid which opened toward the driver. Officer Roche testified that at the time he searched the car, the lid was in a closed position but slightly ajar so that he could open it without having to spring the catch. Officer Leedy testified that when he arrested appellant, the console was closed, and he could not see the gun. He stated that he did not see appellant get anything out of the console and did not recall asking him for his registration. He further said that appellant could not have unlocked and opened the console without his noticing it. Appellant testified that the console was locked when the officer stopped him and that as Leedy approached him he unlocked the console to get out his vehicle registration. The jury found appellant guilty as charged.

On appeal, appellant recognizes that under the rationale of Ensor v. State, 403 So.2d 349 (Fla.1981), his gun was concealed within the meaning of section 790.01. However, he argues that he could not be convicted because his gun was “securely encased” as contemplated by the exception set forth in section 790.25(3)(l), Florida Statutes (1979). He relies primarily on State v. Hanigan, 312 So.2d 785 (Fla. 2d DCA 1975), in which this court held that a revolver in a holster with a leather strap snapped over the hammer which could not be fired until the strap was released and the revolver removed from the holster was securely encased as contemplated by the statute.

What does securely encased mean? The verb encase has been defined to mean, “to enclose in or as if in a case.” American Heritage Dictionary of the English Language 429 (New College ed. 1976). The most applicable definition of secure is “a. not likely to fail or give way; stable; strong, b. well fastened.” Id. at 1173. In State v. Butler, 325 So.2d 55, 56 (Fla. 3d DCA 1976), the court said in a split decision:

We should examine these grounds in the inverse order because if the weapon is “securely encased,” it is exempt and there is no need to determine whether the weapon is in “close proximity of the driver.” Encased is simple in meaning. The prefix “en-” means “in.” The principal word “ease” means an enclosed container. Gun cases are well known articles. We think that we should give to the words of the statute their ordinary meaning and should apply the statute in a straight-forward, literal manner. See Merrill Lynch, Pierce, Fenner & Smith, and Pritchard v. Byrne, Fla.App.1975, 320 So.2d 436 (released Sept. 23, 1975). We, therefore, hold that a gun placed in an unlocked receptacle which is a part of the automobile is not “securely encased.”

Judge Haverfield seemed to place some reliance upon Hanigan in his dissent. He also referred to the Oxford Universal Dictionary’s definition of the word encase (or in-case) which read, “ ‘...' to put into or enclose within a case ... to overlay, surround, hem in; ... to cover, invest ....’” 325 So.2d at 57 n. 1.

Returning to the present case, while the testimony was in conflict, we are required to view the evidence most favorably to the state since appellant was convicted. Applying this criteria, we must assume that the lid of the console containing appellant’s pistol was unlocked and ajar. The gun could be retrieved by simply opening the lid and pulling it out. Therefore, under any of the definitions we have examined, we cannot say, as we could in Hani-gan, that as a matter of law the gun was securely encased, and so we must affirm the jury’s verdict.

Having decided this case on its facts, there is no requirement for us to say anything more. Yet, because there is so much doubt over the circumstances, if any, when a person can lawfully carry a concealed weapon, we feel warranted in making some further observations. It may be, as the court held in State v. Bryant, 373 So.2d 708 (Fla. 3d DCA 1979), that the exceptions of section 790.25(3) only eliminate the need for obtaining a license under sections 790.05 and 790.06, Florida Statutes (1979), and that they are inapplicable to prosecution for carrying a concealed weapon under section 790.01. Accord, State v. Murray, 382 So.2d 1372 (Fla. 4th DCA 1980). However, if this is so, it overlooks the fact that section 790.-06 pertains to licenses for carrying concealed pistols and that the appellate courts of Florida have often recognized that the section 790.25(3) exceptions are applicable to section 790.01. Peoples v. State, 287 So.2d 63 (Fla.1973); Facion v. State, 290 So.2d 75 (Fla. 2d DCA 1974); French v. State, 279 So.2d 317 (Fla. 4th DCA 1973). See Russ v. State, 304 So.2d 481 (Fla. 1st DCA 1974). In addition, if the exceptions do apply, questions remain as to the meaning of securely encased. What if the console containing appellant’s gun had been locked? Is a gun in a zippered or partially zippered case securely encased? What about a gun in an unlocked gun case or a wrapped package?

Because of the conflicting emotions which surround the subject, the legislature may be understandably reluctant to venture into a statutory revision involving the regulation of firearms. Yet, the people of Florida deserve to know when and under what circumstances they are entitled to carry guns. As it now reads, chapter 790 is a mass of conflicting rules which seem calculated to ensnare the unwary and to provide little guidance for our law enforcement officers.

AFFIRMED.

SCHOONOVER, J., concurs.

RYDER, J., concurs specially with opinion.

RYDER, Judge,

concurring specially.

Not only do I concur in the above opinion, but also voice my special concern relating to the state of the law as it presently reads in chapter 790, Florida Statutes. Over the years, this chapter has often been amended to the point that some sections appear out of tune with others. I am here suggesting that the legislature restore harmony to this important part of the state law. Elements of this chapter present an almost catch-22 situation to the citizenry. It is an area of law where honest citizens can be caught unaware and can be charged with serious crime despite no intention to violate the law. Oft times, a later showing of that lack of intent is costly. It is an area of law where honest citizens are daily left to the arbitrary decisions of the police as to whether or not an arrest will be made. The police prefer certainty as well.

Chapter 790 should receive the full attention and scrutiny of the Florida legislature with a view towards amendment and overhaul so as to give not only the citizenry, but law enforcement, simple and long lasting guidelines as to what is and what is not illegal as it relates to the use, possession, licensing and carrying of firearms.

In addition to the areas of concern discussed above, the interaction, or lack of interaction, between section 790.05 and 790.06 should be addressed. Section 790.05 makes it a crime to unlawfully carry around not only handguns, but also Winchester rifles or other repeating rifles without a permit from the county commission. Section 790.06 permits the county commission to issue permits for the carrying of handguns, but does not speak to the licensing of Winchester rifles or other repeating rifles. A Winchester rifle is a most popular hunting rifle in the United States. Its carbine was made famous as this nation pushed West. Thousands of hunters in Florida possess and carry Winchesters or other repeating rifles around during hunting season and otherwise. I have reservations whether section 790.05, singling out Winchesters, is constitutional. In this regard, the case of Watson v. Stone, 148 Fla. 516, 4 So.2d 700 (1941) is most interesting and instructive; particularly Justice Buford’s concurring opinion. There, he traced the history of the section and opined that the section contravened the Constitution and would be nonenforceable if contested.

Turning to another area of concern, in the November 22, 1981 Sunday edition of the newspaper, the Tampa Tribune, on page 1C, there was carried an article written by Valerie Strauss of the United Press International news service which indicates that there was a broad proliferation of weapons in Dade County during the 1980-81 fiscal year. In Dade alone, according to her article, residents purchased 66,193 guns during the aforesaid period. Because of the increase in crime and the accompanying increase in fear by honest citizens for their personal safety, I would suspect that other areas, metropolitan and rural, have experienced a similar increase in the number of guns purchased by the citizenry.

The question of why an alarming number of citizens now feel the necessity to arm themselves should be also a factor to be considered by our lawmakers in spurring along quick legislative attention to chapter 790.

      . Ensor specifically noted that it was not considering the effect of any of the exceptions contained in section 790.25(3). 403 So.2d at 355.


author: DAUK.SCH, Chief Justice.

text:
    Curtis Lee HARRISON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 82-61.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 1982.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.
   WRIT OF HABEAS CORPUS

DAUK.SCH, Chief Justice.

Upon consideration of the Petition for Writ of Habeas Corpus and the response, it is the determination of this court that the petitioner is being held by the respondent illegally.

The petitioner was sentenced to serve a term in the state prison after his probation was revoked. The trial judge did not give the petitioner credit for time he had already served in jail as a condition of the probation which was revoked. This is error. Section 921.161(1), Florida Statutes, requires:

.. . the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.
(emphasis supplied).

This ease is like the case of Andrews v. State, 357 So.2d 498 (Fla.1st DCA 1978), in that the trial judge first sentenced petitioner to one sentence and then when the error of that sentence was brought to his attention, by this court in this instance, he then resentenced the petitioner to a greater term and then gave him credit for the time served. It must be done correctly the first time. See also Meintzer v. State, 399 So.2d 133 (Fla.5th DCA 1981).

Because petitioner has served time in excess of his legal sentence he is ordered immediately discharged from custody. Either party may file a timely petition for rehearing but the respondent shall immediately release the petitioner.

WRIT GRANTED; PETITIONER RELEASED FROM CUSTODY.

SHARP and COWART, JJ., concur.


text:
    Joyce Bernice HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. VV-307.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.

      Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie & Magie, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a conviction of second degree murder. Finding merit in several points on appeal, we reverse and remand for a new trial.

This was appellant’s second trial for the murder of her husband. Her first conviction, for first degree murder, was reversed by this court in Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979). The opinion in that case contains an adequate presentation of the facts surrounding the shooting of appellant’s husband, Aubrey Hawthorne, and those facts will not be reiterated here.

One of the points raised in this appeal is that the prosecution should not have been permitted to impeach Mrs. Hawthorne’s testimony at this second trial using her testimony from the first trial because her first trial testimony was arguably the product of an illegally obtained statement which was improperly introduced at the first trial. Appellant contends that the decision in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), is directly applicable in this case and that the State failed to demonstrate that the statement procured through its illegal action did not induce her first trial testimony which was used for impeachment at the second trial. Defense counsel objected and moved for a mistrial when the alleged improper impeachment occurred. The State contends that the principle of Harrison v. United States, supra, prohibiting impeachment with prior testimony which is a product of an illegally obtained confession, has been eroded by subsequent decisions in a series of cases beginning with Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Alternatively, the State argues that Harrison v. United States, supra, does not apply to the instant situation, and that the appellant would have testified at the first trial in support of her claim of self-defense regardless of the introduction of the illegally obtained statement.

We agree with appellant that Harrison v. United States is applicable in the instant situation and that the State failed to respond to its burden of showing that its illegal action did not induce the testimony at the first trial which was used to impeach at the second trial. Therefore, the first trial testimony was inadmissible for impeachment purposes. We accordingly reverse on this point.

As to the argument that the principle of Harrison v. United States has been overruled by Harris v. New York and subsequent cases, we disagree. The ruling in Harris v. New York permits the use of a confession obtained without warning the defendant of his right to counsel to impeach the defendant’s credibility, even though such a confession could not be used in the prosecution’s case-in-chief. Significantly, the court in Harris pointed out that the “[petitioner makes no claim that the statements made to the police were coerced or involuntary” and that even though the evidence was not admissible in the prosecution’s case-in-ehief, it would not necessarily follow that the evidence should be “barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” 401 U.S. at 224, 91 S.Ct. at 645. The Florida Supreme Court noted in Nowlin v. State, 346 So.2d 1020 (Fla.1977), in commenting on Harris, that in order for the trustworthiness of a statement used for impeachment to satisfy legal standards, the statement must at least be shown to have been voluntarily given, the State having the burden to show voluntariness. The premise for the decision in Harris, the reliability of the statements used to impeach, would not necessarily be satisfied in every case which presents a situation similar to that of Harrison. Accord, Ibn-Tamas v. United States, 407 A.2d 626, 641-642 (D.C.App.1979). In the instant case, the rationale for Harris, that testimony which is unquestionably reliable ought not to be barred for all purposes, is without a doubt not applicable. The precise reason why Mrs. Hawthorne’s statement was determined by this court to have been improperly admitted at the first trial was its coerced and involuntary nature. 377 So.2d at 784. Therefore, in our opinion, as to the instant situation the Harrison decision remains viable.

The State argues that Harrison and the instant ease are distinguishable and that appellant would have taken the stand at the first trial in order to establish self-defense even if the illegally obtained statement had not been admitted. As to these contentions, we note that a similar possibility was addressed in Harrison:

But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admission so damaging would have been made if the prosecutor had not already spread the petitioner’s confessions before the jury. That is an inference the Government has not dispelled. 392 U.S. at 225-226, 88 S.Ct. at 2011-2012.

Similarly, in the instant case even if appellant might have taken the stand at the first trial regardless of the admission of the statement, it does not follow that she would have admitted placing a shotgun under her daughter’s bed on the night of the shooting, for example. We conclude that the State failed to show that the prior testimony used for impeachment purposes and complained of here was not the product of the illegally obtained and unreliable statement. In addition, these references at the second trial to the contents of the illegally obtained statement ignored this court’s admonition in the first Hawthorne opinion that “[o]n retrial of defendant, her statements and confessions, or any evidence relating thereto, are inadmissible.” 377 So.2d at 785.

We think the trial court also erred in refusing to allow a proffer of testimony by a witness, appellant’s daughter America Hawthorne, as to alleged sexual misconduct by the deceased towards her. There was some confusion as to precisely when the proffer would be made, however, the trial court clearly indicated that the proffer would not be allowed. “A trial court should not refuse to allow a proffer of testimony. This is necessary to insure full appellate review.” Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976). Appellee contends that in order for the episode regarding which America would have testified to have been relevant to the defense of self-defense, it had to be shown that appellant was aware of the occurrence. Not having a proffer of the testimony to review, we cannot determine whether it would have been relevant. Reversal on this point is therefore in order, particularly since this court previously ruled that the trial court had improperly limited witnesses’ testimony as to the deceased’s acts of violence toward appellant, her children, and third persons. 377 So.2d at 787.

The trial court also erred in allowing the prosecution to attempt to impeach America Hawthorne’s credibility by playing her entire tape recorded statement that had been taken previously. The stated purpose for playing the tape was to contradict America’s assertion that before the tape recorded statement was taken she had spoken with the state attorney off the record and mentioned that her father had threatened to “make the rounds” on the night of his death; the prosecutor implied that this aspect of America’s testimony had been fabricated just before trial. The prosecutor also mentioned that the tape would serve to impeach America as to her ability to recollect and her demeanor on prior occasions when her statements were taken. First of all, the tape recorded statement could not prove or disprove what had been said off-the-record before the conversation was recorded. Secondly, with regard to America’s recollection of events, the prosecutor had already engaged in a lengthy impeachment of her on the basis of prior inconsistent statements contained in her depositions. Finally, with regard to America’s demean- or, the prosecutor had previously presented evidence to support his suggestion that the face she was presenting to the jury was not sincere because she had never wept on other occasions while discussing the case. Two previously unannounced witnesses were presented and testified at length about her demeanor on the occasions when her statements were taken. Thus, the playing of the entire tape recorded statement in the presence of the jury constituted improper impeachment. Cf. Hill v. State, 355 So.2d 116 (Fla. 4th DCA 1978).

The last argument by appellant that warrants discussion is that the trial court erred in disallowing the testimony of Dr. Lenore Walker, a clinical psychologist who would have testified as an expert with regard to the battered woman syndrome. The purpose of such testimony would have been to give the jury a basis for considering whether appellant suffered from the battered-woman syndrome, not in order to establish a novel defense, but as it related to her claim of self-defense. We are aware of the conflicting decisions of various jurisdictions as to the admissibility of this type of expert testimony. See, e.g., Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981); Buhrle v. State, 627 P.2d 1378, 1378 (Wyo.1981); Ibn-Tamas v. United States, 407 A.2d 626 (D.C.App.1979). The courts that have considered the admissibility of this type of expert testimony have generally analyzed it to see whether it meets three basic criteria: (1) the expert is qualified to give an opinion on the subject matter; (2) the state of the art or scientific knowledge permits a reasonable opinion to be given by the expert; and (3) the subject matter of the expert opinion is so related to some science, profession, business, or occupation as to be beyond the understanding of the average layman, citing Dyas v. United States, 376 A.2d 827 (D.C.App.1977), cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). Basically, the same criteria are applicable in the instant case. See, Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980); Buchman v. Seaboard Coastline Railroad Co., 381 So.2d 229 (Fla.1980); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975).

The few case authorities which have considered the admissibility of this type of expert testimony disagree primarily with regard to (1) whether the study of the battered-woman syndrome is an area sufficiently developed to permit an expert to assert a reasonable opinion, and (2) whether the battered-woman syndrome is beyond the knowledge and experience of most laymen.

In Ibn-Tamas and Smith, the courts concluded that the expert testimony should have been allowed, inasmuch as the subject matter was “beyond the ken of the average layman.” 277 S.E.2d at 683. “[T]he expert’s testimony explaining why a person suffering from battered woman’s syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw for themselves.” Id. The court in Ibn-Tamas also concluded that the expert could provide “an interpretation of the facts which differed from the ordinary lay perception,” therefore the subject matter was “ ‘beyond the ken of the average layman.’ ” 407 A.2d at 635. The Ibn-Tamas court determined, however, that the trial court had not ruled on whether the expert, Dr. Lenore Walker, was sufficiently qualified to give an opinion or whether “ ‘the state of the pertinent art or scientific knowledge’ ” would permit an expert opinion. 407 A.2d at 635. The court said that this third criterion depended on “whether Dr. Walker’s methodology for identifying and studying battered women” was generally accepted. 407 A.2d at 638. The question whether the second and third criteria were satisfied was remanded to the trial court.

In State v. Thomas, the Ohio Supreme Court determined that expert testimony by a psychiatric social worker was properly excluded because the battered-woman syndrome was within the jury’s understanding and also that the syndrome “is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise.” 423 N.E.2d at 140.

In Buhrle v. State, the Wyoming Supreme Court in rejecting Dr. Walker’s testimony on the syndrome said that “we are not saying that this type of expert testimony is not admissible; we are merely holding that the state of the art was not adequately demonstrated to the court, and because of inadequate foundation the proposed opinions would not aid the jury.” 627 P.2d at 1378.

We agree with the view expressed by the Georgia Supreme Court in Smith v. State insofar as it concluded that jurors would not ordinarily understand “why a person suffering from battered-woman’s syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself.. . . ” 277 S.E.2d at 683. In the instant case, however, there has been no determination below as to the adequacy of Dr. Walker’s qualifications or the extent to which her methodology is generally accepted indicating that the subject matter can support a reasonable expert opinion. Our determination that this expert testimony would provide the jury with an interpretation of the facts not ordinarily available to them is subject to the trial court determining that Dr. Walker is qualified and that the subject is sufficiently developed and can support an expert opinion.

Appellee argues that to admit this type of expert testimony would violate the rule stated in Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976), and recently followed by the Florida Supreme Court in Zeigler v. State, 402 So.2d 365 (Fla.1981), that “testimony regarding the mental state of a defendant in a criminal case is inadmissible in the absence of a plea of not guilty by reason of insanity,” 402 So.2d at 373, and the rule that the doctrine of diminished capacity is not available in Florida. State ex rel Boyd v. Green, 355 So.2d 789, 794 (Fla.1978). Zeigler and other cases following the rule stated in Tremain were cases in which the accused sought to assert as part of the defense a diminished capacity which did not rise to the level of insanity. In Tremain, in support of the defense of entrapment, the defense proffered the testimony of a psychologist to the effect “that defendant was dependent on others and lacked willpower.” 336 So.2d at 706. In Zeigler, the defense sought to offer the testimony of a psychiatrist although the purpose for offering that expert testimony is not clear in the opinion. We think there is a difference between offering expert testimony as to the mental state of an accused in order to directly “explain and justify criminal conduct,” Tremain at 706, and the purpose for which the expert testimony was offered in the instant case. In this case, a defective mental state on the part of the accused is not offered as a defense as such. Rather, the specific defense is self-defense which requires a showing that the accused reasonably believed it was necessary to use deadly force to prevent imminent death or great bodily harm to herself or her children. The expert testimony would have been offered in order to aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of her belief. The factor upon which the expert testimony would be offered was secondary to the defense asserted. Appellant did not seek to show through the expert testimony that the mental and physical mistreatment of her affected her mental state so that she could not be responsible for her actions; rather, the testimony would be offered to show that because she suffered from the syndrome, it was reasonable for her to have remained in the home and, at the pertinent time, to have believed that her life and the lives of her children were in imminent danger. It is precisely because a jury would not understand why appellant would remain in the environment that the expert testimony would have aided them in evaluating the case.

As to appellant’s argument that photographs of the deceased were inflammatory and should have been excluded, we find no merit.

REVERSED and REMANDED for a new trial.

McCORD, MILLS and THOMPSON, JJ., concur.

      . Also referenced are Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), and United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980).

      . In both Oregon v. Hass and United States v. Havens, supra, footnote 1, the Court either noted that there was no evidence to suggest that the statements were involuntary or coerced, or clearly assumed the reliability of the statements.

      . Appellant points to this particular admission as being derived from the illegally obtained and improperly introduced statement. It was her first trial testimony with regard to that admission that was used for impeachment at the second trial. When presented with this prior testimony at the second trial over objection of defense counsel, Mrs. Hawthorne stated: “No sir, I don’t recall that. When I gave my statement, I was very upset.” All indications are that the admission of placing a shotgun under her daughter’s bed on the night of the shooting did originate in the illegally obtained statement, and the appellee has not attempted to demonstrate the contrary.

      . The following exchange took place when the testimony was offered at trial:
      MR. THOMAS: I think it goes to fear, but we can make the proffer later.
      THE COURT: I think it has already been made.
      During the hearing on the motion for a new trial, defense counsel again attempted to proffer the testimony:
      MR. THOMAS: ... and Judge, finally, I would like to offer again America Hawthorne’s testimony, and I would like to put it in the record—
      THE COURT: What testimony?
      MR. THOMAS: The testimony of the sexual molesting by her father.
      THE COURT: I have already ruled that not to be material, and I don’t think there is any need to get a proffer in the record at this time. .. .

      . Appellee informs us that on remand the trial court determined that Dr. Walker’s qualifications to express an opinion on the battered woman syndrome were insufficient and her methodology was not generally accepted.

      . For example, Jones v. State, 378 So.2d 797 (Fla. 1st DCA 1980).

      .In Tremain, the expert testimony was offered in support of the entrapment defense. Apparently the defense sought to have a lesser standard of responsibility applied to the accused because of his lack of willpower and dependence. In our view this amounts to evidence of a mental defect itself as a defense.


text:
    SHERATON TOWERS HOTEL, Florida Hotel-Motel Self-Insurers’ Fund and their servicing agent, Corporate Group Service, Inc., Appellants, v. Jose ROCHE and State of Florida, Department of Labor & Employment Security, Division of Workers’ Compensation, Appellees.
    No. YY-14.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    C. E. Miller of Miller & Cooper, P. A., Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney & Adler, P. A., Orlando, for appellees.
   PER CURIAM.

Sheraton Towers appeals the deputy commissioner’s order awarding wage loss benefits and penalties asserting the record reveals an insufficient evidentiary base upon which the award may be supported. We agree and reverse.

Appellee was injured while at work at the Sheraton Towers Hotel on January 28, 1980, when he injured his right hand. He was treated until he was released with a two percent (2%) permanent disability of his right hand on April 14, 1980. Appellant instructed Roche to return to work on the following day at 7:30 A.M. Although ap-pellee asserts he attempted to return to work, he was unable to do so and did not call in for at least several hours. Roche was subsequently discharged.

Roche then filed a timely request for wage loss benefits. During the following hearing, Roche testified that although he made a good faith effort to procure employment, he was unable to do so. On October 6,1980, the deputy commissioner entered an order determining Roche made a good faith but unsuccessful work search and that his inability to find employment was caused by the impairment to his hand. The deputy, therefore, awarded appellee the maximum permissible compensation rate and penalties pursuant to Section 440.20, Florida Statutes (1979).

We have reviewed the record and have determined the evidence does not demonstrate a causal relationship between appel-lee’s inability to find a job and the injury to his hand. Section 440.15(3), Florida Statutes (1979), provides for wage loss benefits only if the claimant establishes the asserted wage loss is the result of the compensable injury. Since the penalties awarded are dependent upon the validity of the underlying award, the evidence also fails to support the amount awarded pursuant to Section 440.20, Florida Statutes (1979). Accordingly, the deputy commissioner’s order rendered on October 6, 1980, is REVERSED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS and THOMPSON, JJ., concur.


text:
    Judith STAHL, Appellant, v. MIKE GORDON’S SEAFOOD RESTAURANT, et al., Appellee.
    No. ZZ-33.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied Feb. 11, 1982.
    Jay M. Levy of Silver & Levy, Miami, for appellant.
    John F. McMath, Miami, for appellee.
   PER CURIAM.

Claimant appeals a workers’ compensation order which denied a claim for wage-loss benefits upon a finding that “there has been no compliance with the requirements of the statutes 440.19(1), 440.185(10), and 440.15(3)(b).” Claimant contends that the finding of non-compliance is not supported by material record evidence and should not preclude an otherwise valid wage-loss claim in the circumstances of this case. We agree and reverse the order appealed.

On the point in question the order contains recitations as follows, without other explanation of the apparently complex history of the claim:

A prior Order was entered by the undersigned on June 13, 1980....
The claim for temporary total disability benefits from May 11,1980 to the present time, is denied since the employee reached maximum medical improvement March 14, 1980. (see paragraph 7 of Order dated 6/13/80)....
The claim for wage loss benefits is denied since there has been no compliance with the requirements of the Statute 440.19(1), 440.185(1) and 440.15(3)(b). . . .

Claimant made an initial wage-loss report on August 12, 1980, alleging wage loss between the dates of May 11,1980, and July 16, 1980. Section 440.185(10), Florida Statutes, requires a wage-loss report “within 30 days after the termination of the month for which such loss is claimed.” Claimant’s report was thus timely filed insofar as the claim related to the month of July. As to that portion of the claim which related to May and June, while the report was untimely filed, neither § 440.185(10), nor any other provision of Chapter 440, indicates that such untimely reporting must bar an otherwise valid claim. Employer/carrier has not alleged, and the record does not indicate, any prejudice resulting from the untimely reporting in this case. We conclude that, in these circumstances, wage-loss benefits were not properly denied merely because wage-loss reports were delayed. See generally, Gall Silica Mining Co. v. Sheffield, 401 So.2d 1169 (Fla. 1st DCA 1981).

As to the deputy’s other findings of statutory non-compliance, § 440.19(1) relates to the investigative responsibility of the Division of Workers’ Compensation, and § 440.15(3)(b) relates to wage-loss computation and eligibility. The record evidence does not indicate any non-compliance by claimant with these provisions, nor any prejudice to those activities resulting from the delay.

Accordingly, the order appealed is reversed and remanded for further proceedings.

ERVIN, WENTWORTH and JOANOS, JJ., concur.