author: LETTS, Judge. ANSTEAD, Judge, LETTS, Chief Judge.

text:
    The MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc. (The Miami Herald), Palm Beach Newspapers, Inc. (Palm Beach Post-Times), WTWV, Inc. (WTVX-TV, Channel 34, Fort Pierce), Cape Publications, Inc. (Today) and Vero Beach Press-Journal, Inc. (Vero Beach Press-Journal), Petitioners, v. Honorable Royce R. LEWIS, the State of Florida, and Brooks John Bellay, Respondents.
    No. 79-2557.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1980.
    On Rehearing May 21, 1980.

      Sanford L. Bohrer, Parker D. Thomson and Richard J. Ovelmen of Paul & Thomson, Miami, for petitioners.
    William T. McCluan, Melbourne, for petitioner Cape Publications, Inc.
    Elton H. Schwarz, Public Defender, and Paul B. Kanarek, Asst. Public Defender, Vero Beach, for respondent Brooks John Bellay.
   ON PETITION FOR REVIEW OF ORDER CLOSING PRETRIAL SUPPRESSION HEARING TO THE PRESS AND PUBLIC

LETTS, Judge.

This proceeding, filed by the media under Florida Appellate Rule 9.100(d), protests a lower court ruling which (1) closed a pre-trial hearing on a motion to suppress and (2) sealed the records pertaining to that suppression hearing until the selection and swearing in of the jury at the forthcoming trial. We affirm the former and reverse the latter.

The accused male in this ghastly case, aged 14, is alleged to have had sexual relations with, and then to have murdered, a female child. Preparing for the trial, defense counsel moved for a change of venue because of excessive pre-trial publicity throughout Indian River County (population 56,000). In this regard the defense cited in excess of fifty articles in four newspapers and extensive radio and TV coverage all supposedly featuring lurid details of the alleged offense and reporting confessions by the accused. This motion for a change of venue was denied.

Later filed by the defense was a motion to close the hearing on the suppression of the confessions. The media were notified of this motion to close and were represented at argument thereon, before the trial judge. The state did not oppose the motion. At the conclusion of the argument the trial judge ordered the suppression proceedings closed to the media and public. Thereafter, when the suppression proceedings were concluded the Judge denied the motion to suppress, yet sealed all the court records of the suppression proceeding until commencement of trial. The media seeks reversal of the trial judge’s actions.

AS TO THE CLOSING OF THE HEARING

This point involves a classic illustration of the old dilemma: which comes first, the chicken or the egg? In Miami Herald Publishing Company v. McIntosh, 340 So.2d 904, 910 (Fla.1977) our Supreme Court held the press entitled to . . notice and a hearing before any trial court enjoins or limits publication of court proceedings” (emphasis supplied). We followed this mandate in Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978) as did the trial judge in the case at bar. However the media is far from satisfied with mere notice and a hearing with only argument and no evidence. In the case before us now for instance, the media points out that at the hearing afforded to them “. . .no evidence existed or was presented to support closure of the suppression hearing.” Therefore they argue that because the trial judge had not heard or seen the confessions or. any evidence he had no basis to conclude that:

(1) Closure [was] necessary to prevent, a serious and imminent threat to the administration of justice;
(2) that no less restrictive alternative measures [were] available; and
(3) that closure will in fact achieve the Court’s purpose. Miami Herald Publishing Company v. State, 363 So.2d 603, 606 (Fla. 4th DCA 1978)

However we fail to comprehend how the trial judge can come to any intelligent conclusion until he has first heard the substance of the evidence sought to be closed. Must the hearing on a motion to suppress be open while the judge considers whether it should be closed? An affirmative answer would make any request for closure moot or require a gag order. On the other hand as this court said in Miami Herald v. State, supra:

the proponents of the closing can argue that there exist cogent and compelling reasons for the closing in the form of imminent personal peril. The media is thereupon reduced to responding that there are not, without any actual knowledge of that which it asserts. We find this unfair to the media yet can offer no cure at the trial level, short of requiring an open rather than a closed hearing and allowing the entering of a subsequent gag order if deemed necessary. Such a solution might be workable, but we cannot implement it at this level. The latest Supreme Court rule on the subject [Fla.App.R. 9.100(d)] specifically envisages proceedings from which the press is excluded. Such would certainly pre-empt us from a major departure from this concept under which we would prefer to include the press at all hearings and then “gag” them if required, (p. 607)

Notwithstanding these misgivings we continue to believe that any alternative must come from the Supreme Court. In the meantime the media’s remedy is recourse to this court for a review of the trial judge’s actions.

In support of our conclusion we have examined the latest pronouncement about excluding the media from pre-trial suppression of confession hearings, issued by the Supreme Court of the United States in Gannett Company v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). There can be no question but that Gannett stands for the proposition that the media has no constitutional right of access to a pre-trial suppression of a confession hearing and that in order “to safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.” (p. 2904)

Likewise a careful reading of McIntosh does not suggest to us that the trial judge acted improperly in this case. Accordingly we find no error in the trial judge’s closure of the hearing on the motion to suppress.

AS TO SEALING OF THE RECORD UNTIL TRIAL

We are of the opinion that the trial judge erred in sealing the record of the suppression hearing until the selection and swearing in of the jury. We recently held in Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978) that a record cannot be sealed unless it:

1. Is necessary to prevent a serious and imminent threat to the administration of justice.
2. Can be established that no less restrictive alternative measures are available.
3. Will in fact achieve the Court’s purpose.

It is true that in Miami Herald v. State a sentencing, rather than a pre-trial proceeding, was involved. Moreover we are conscious of the impact of Gannett decided later. Nevertheless we hold that these same three criteria should be applied to pre-trial hearings as well, upon the same premise that we have cited before, namely that “what transpires in the court room is public property.” Craig v. Harney 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947).

In its written order sealing the record, the trial judge concluded that all three criteria had been satisfied in the instant case. We disagree as to the second.

As to the first criterion, we agree that there arises a serious and imminent threat to the administration of justice if the printing or reporting of a transcript of a confession is “featured” prior to trial. As the Florida Supreme Court said in Oliver v. State, 250 So.2d 888 (Fla.1971) such featuring amounts to a “trial by newspaper” which is incapable of cure by the voir dire process. This same principle was reiterated in Hoy v. State, 353 So.2d 826 (Fla.1977). However at issue in Oliver and Hoy, supra, was whether a motion for change of venue should have been granted after the alleged prejudicial publicity had already taken place. Here, obviously, the alleged prejudicial publicity has not yet taken place since the record of the suppression hearing remains sealed and there is no evidence that the details of any alleged confessions have otherwise been made public. Nevertheless, it could not-be unreasonable for the trial court to here conclude, in the light of the substantial pre-trial publicity which has already occurred, that the details of any confessions sought to be suppressed would also be given substantial coverage in the local media raising the possibility of the result in Oliver and Hoy.

Thus since it appears that the trial court’s purpose in the case at bar was to avoid a repetition of the publicity already aired and to avoid the printing of lurid details of the confessions, we also cannot say that the closure did not also satisfy the third criterion.

Notwithstanding the apparent satisfaction of two out of the three of the criterion adopted, we cannot agree that it has been demonstrated that there were no less restrictive measures available.

In Gannett the United States Supreme Court pointed out on pages 2904 and 2905 why closure, as distinct from a less restrictive measure, is justified.

This Court has long recognized that adverse publicity can endanger the ability of a defendant to receive a fair trial. E. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. Cf. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra. And because of the Constitution’s pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.
Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, ’ inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. When such information is publicized during a pretrial proceeding, however, it may never be altogether kept from potential jurors. Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of such information throughout the community before the trial itself has even begun. Cf. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. (pp. 2904, 2905) (footnotes omitted)

Clearly the danger foreseen in Gannett is based on the hazard of potential jurors having knowledge of inculpatory matters wholly inadmissible at the actual trial. Such a hazard is totally absent here because the judge ruled that the confession would be admitted. Thus the jury will hear the confession in any event.

We realize that the problem of Oliver and Hoy still remains in the case at bar but, under the circumstances of this case, find that there are less restrictive measures available than a sealing of the record until trial, for example a change in venue. Apparently defense counsel in the case at hand agrees because at oral argument before this court he declared a preference for a venue change rather than a continued sealing of the record. Yet the defense contends that sealing remains vital because the trial court has already denied a motion for a change of venue. However that motion denied was predicated only on publicity up to the time of that hearing and could not include publicity arising out of the suppression proceedings not yet published.

A change of venue is itself a drastic measure to be invoked only if the defendant cannot receive a fair trial in the local community. Hence whether such a change in venue will prove necessary in the instant case will depend on how the media treats the record which we here unseal. If the media “features” the confessions in the manner condemned by Oliver and Hoy, then the trial court will have no alternative but to grant a venue change. However a decision on that is premature as of this writing.

As we have already said the granting of a change of venue is a major step which involves considerable difficulty, more delay to the state and a continuation of severe emotional trauma for the defendant as well as enormous expense ultimately to be borne in large part by the taxpayer. Such considerations may at first glance, make this trial court’s choice appear reasonable, i. e., a short delay in disclosing the suppression proceedings versus the lengthy delay and great expense of a change of venue. However, it has been previously determined that although a defendant’s right to a fair trial is paramount to the public’s right to simultaneously know what occurs in a judicial proceeding, it is only when the accused’s rights cannot be safeguarded by some reasonable alternative, that a judicial record should be sealed, Miami Herald v. State, supra.

We do not foreclose the possibility that there will be cases of such notoriety that a change of venue will not suffice. Thus our conclusion here is expressly limited to the circumstances of this case.

We have considered Judge Antead’s special concurrence expressing concern that Gannett may have overruled Miami Herald Publishing Company v. State, at any rate so far as pretrial proceedings are concerned. However, for the very reasons set forth hereafter by Judge Anstead, we are convinced that Gannett does not preclude what we have here determined. Accordingly, we see no reason for further delay in unsealing this record.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS TO THE TRIAL JUDGE TO UNSEAL THE RECORD. .

GLICKSTEIN, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although I concur in the majority’s opinion, I feel bound to express my sympathy for a trial court faced with a request for closure in the wake of Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). My .reservations have to do with the effect of the Gannett decision on our decision in Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978) and the three-pronged closure test set out therein. My conclusion is that although Gannett has knocked away many of the underpinnings of the three-pronged test, a similar test is still justified and its application valid under the circumstances of this case.

Prior to the Gannett decision this court stated in Miami Herald Publishing Company v. State, supra, that “what transpires in the court room is public property.” We agreed that a hearing should not be closed absent a showing that

(1) closure is necessary to prevent a serious and imminent , threat to the administration of justice, (2) that no less restrictive alternative measures are available, and (3) that closure will in fact achievé the Court’s purpose.

This test is essentially the same as the two-pronged test set out in the American Bar Association’s Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, § 8-3.2, at page. 16 (Approved Draft 1978). The commentary to that, standard acknowledged that it was substantially predicated on the assumption that the public does have sixth amendment rights to access to all judicial proceedings:

It has been argued that the press has a first amendment right of access • to the court and court records that exceeds such rights of members of the public generally. This view has been rejected by the courts. The policy in this standard- in favor of open proceedings and free access to court records rests on sixth amendment grounds.
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The public interest in open proceedings and free access to courts in a criminal case is át least as strong as the first amendment policy against prior restraints. Consequently, this standard follows the basic approach taken by. the Supreme Court in Nebraska Press Association v. Stuart. Id. at 15-16.

While not expressly saying so, it is apparent that this court adopted the three-pronged test, supra, primarily for the reasons set out in the ABA commentary. Then came Gan nett, which expressly held that the public and press had no sixth amendment rights of access.

The Gannett decision approved the closure of a pretrial suppression hearing under circumstances very similar to those involved herein and rejected the contention that the criteria set out in the Nebraska Press Association case and the ABA Standards should control the closure issue. In fact, the majority opinion in Gannett alluded to a prior ABA standard as support, for its decision:

Until a year ago, the American Bar Association also endorsed the view that presiding officers should close pretrial hearings at the request of a defendant unless there was no “substantial likelihood” that the defendant would be prejudiced by an open proceeding. ABA Advisory Committee on Fair Trial and Free Press, Project on Standards Relating to Fair Trial and Free Press § 3.1 (1968 draft). The ABA, following the “approach taken by the Supreme Court in Nebraska Press Association v. Stuart,” has now changed this standard. American Bar Association Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, § 8-3.2, at p. 16 (Approved Draft 1978). The Nebraska Press case, however, is irrelevant to the question presented here. See n. 25, infra. 99 S.Ct. at 2911, fn. 23.
This. Court’s decision in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683, is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. Since “it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment’s] guaranty to prevent previous restraints on publication,” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357, the Court held that the order violated the constitutional guarantee of a free press. See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355. The exclusion order in the presént case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access. 99 S.Ct. at 2912, fn. 25.

In contrast with the majority’s position, the dissenting justices in Gannett advocated recognition of a right of access to judicial proceedings in the public under the sixth amendment and adoption of a three-pronged closure standard almost identical to the one adopted by this court in Miami Herald v. State, supra.

Notwithstanding its rejection of the contention that the ABA standard was constitutionally mandated, the majority opinion in Gannett indicated that the states might be free to adopt a stricter standard for closure. Indeed, the court indicated that its ruling was limited to a consideration of the issue of whether there were constitutional bars to the entry of a trial court order predicated on a finding of a “reasonable probability of prejudice”- to the defendant’s right to a fair trial. The court was careful to note' that failure to close a pretrial hearing or to take other protective measures to minimize the effects of pretrial publicity, would not necessarily warrant “the extreme remedy of reversal of a conviction.” In other words the states have been left free to devise their own methods of dealing with the issue of open judicial proceedings as long as those methods do not contravene the constitutional rights of the defendant.

The question we now must face is whether we should abandon the three-pronged standard in view of the holding in Gannett and such standard is not constitutionally mandated. In view of our consistent recognition of the existence of a substantial public policy in favor of open judicial proceedings, I believe this question should be answered in the negative, but with an explanation. In State ex rel. Gore Newspaper Company v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975) this court recognized the existence of a fundamental right of access to judicial proceedings:

While we find no specific constitutional or statutory provision speaking directly to the right of the public to attend a judicial proceeding (as distinguished from the right of every person to seek redress in the courts and the right to a public trial in a criminal proceeding as specifically stated in Sections 16 and 21, Declaration of Rights of the Florida Constitution), the “open court” concept is an indispensable part of our system of government and our way of life. See also Wigmore, supra, sec. 1834. As pointed out in Scripps [v. Fulton,] supra [125 N.E.2d], at 900:
“. . The basis of the constitutional guarantee of an ‘open court’ is to be found in the development of the common law and would be a recognized right of the people without constitutional sanction.”
Public access to the courts is as fundamental as the litigant’s right to a fair trial — hence the conflict and the inevitable balancing of rights and interests. 313 So.2d 777 at 786.

Hence, our recognition of a right of access to judicial proceedings has not been predicated solely on the existence of any “speeific constitutional or statutory provision” and accordingly, the impact of Gannett obviously. is much less than it would be if our recognition of the right was solely predicated on the existence of a constitutional right. The reasons for recognition of such a right are set out much more cogently than is possible here in Judge Mager’s opinion in State ex rel. Gore Newspaper Company v. Tyson, supra, and in the concurring opinion of Justice Powell and the dissenting opinion of Justice Blackmun in Gannett, supra. Needless to say, Florida has consistently been in the forefront .in advocating open government, not only through legislative enactments of sunshine laws and public record laws, but also in judicial action such as making judicial proceedings more accessible to the public via “cameras in the courtroom.” Accordingly, there is no question but that we have recognized that the public has a substantial stake in open judicial proceedings.

However, the competing interests of the defendant in securing a fair trial are also substantial; and there can be little question, after Gannett, that if a conflict occurs between the right of access and the defendant’s fair trial or other constitutional rights, the defendant must prevail. In other words the primary obligation of a trial judge under such circumstances is to assure the defendant a constitutionally mandated fair trial. If that can only be done by excluding the public from a pretrial suppression hearing, then that is what must be done. However, as long as reasonable alternatives to closure exist, which will accomplish the same purpose of securing defendant’s fair trial rights as closure, and such alternatives do not conflict with any other constitutional rights of the defendant, then closure may still be‘denied. In other words, I do not believe we should abandon the three-pronged standard we adopted in Miami Herald v. State, supra.

Under the three-pronged test we have required that exceptional circumstances exist before a judicial proceeding may be closed. Such a test is consistent with the similar strict standard applicable to motions for change of venue. Manning v. State, 378 So.2d 274 (Fla.1979). Indeed, we have traditionally relied on a change of venue as an effective means of dealing with prejudicial pretrial publicity. Because Gannett has not prohibited our continued reliance on change of venue, rather than closure, I see no reason why we should embrace closure simply because any constitutional restraints on its use have been relaxed. While closure is necessarily predicated on speculation as to what will occur, a request for a change of venue is determined by the actual circumstances existing at the time. In other words, we should not encourage the use of a remedy based upon speculation where we have an equally effective alternative remedy available.

. In the case at hand the defendant’s assertion that a change of venue would be a more desirable alternative to closure has removed any problem as to the existence of reasonable alternatives. While I do not believe the defendant has a right to choose when a change of venue should be granted as opposed to closure, his agreement to a change of venue herein waives any objections predicated upon the right to speedy trial or to trial in the county where the offense occurred. More importantly, the trial court will be able to determine whether the defendant can receive a fair trial based upon actual conditions existing at the time of trial rather than speculating as to the extent and effect of the disclosure of pretrial proceedings.

Because the Gannett decision has removed any constitutional predicate for invocation of the three-pronged standard set out in Miami Herald v. State to determine when pretrial suppression hearings may be closed, and because the trial courts are entitled to a conclusive statement of the standard to be applied in the wake of Gannett, I would grant the request of the petitioners and certify our decision today to the Florida Supreme Court as one involving an issue of great public interest.

ON PETITION FOR REHEARING

LETTS, Chief Judge.

The Media’s petition for rehearing is granted to the extent that we now certify the entire opinion to the Supreme Court, deeming it to be a matter of great public importance.

As to the first portion of the opinion about closure of the hearing, we certify it primarily because of our expressed concern therein as to the practicality of the rule enunciated in McIntosh. We also certify the opinion because of apprehension as to what effect the Gannett decision has had on prior opinions from our State Supreme Court upon which we have hitherto relied.

In several recent opinions our State Supreme Court has expressed its dislike of “laundry lists.” However, we certainly need more definite guidelines on this particular issue for, if nothing else, they will cut down on appeals every time the Media is denied access to a hearing. Moreover, they will hopefully reduce the editorial denunciation visited upon every trial judge who bars the Media from his courtroom.

Following the lead of the Second District we are attempting to certify our entire opinion. However the rules call for us to certify questions of great public importance and we are apprehensive that the Supreme Court might decline to accept such a broad approach. Accordingly, in the alternative, we ask the following specific certified questions:

1. HOW CAN THE TRIAL. COURTS MEANINGFULLY INCLUDE THE MEDIA AT EVIDENTIARY HEARINGS CONVENED TO DECIDE WHETHER THE MEDIA SHOULD BE PRECLUDED FROM ACCESS TO THAT VERY SAME EVIDENCE?
2. SHOULD THIS COURT ABANDON THE THREE-PRONGED STANDARD WHICH WE ADOPTED IN MIAMI HERALD v. STATE IN VIEW OF THE HOLDING IN GAN-NETT 1

The respondent Brooks John Bellay’s petition for rehearing is denied. ■

He has already requested one change of venue and had it denied. To now claim in the next breath that a venue change would .be denial of his constitutional rights to be tried in the county where the crime was committed under Section 16 of the Florida Constitution is an unacceptable about-face, undoubtedly inspired by footnote 4 of this court’s opinion. No right to be tried in the community where the crime was committed was raised in the respondent’s main brief. Indeed, during oral argument before this court, the respondent argued that a change of venue would be preferable to a continued sealing of the record. We commented on this particular orally stated preference in our opinion and that comment has not been challenged in the petition for rehearing.

Finally, our opinion as written did not command a venue change. Rather it afforded to the respondent the opportunity to consider how the media would treat the record unsealed, then renew the motion for a venue change, if he so desires.

ANSTEAD and GLICKSTEIN, JJ., concur.

      . Although surmountable in the case at bar, the media did not see fit to furnish us with a transcript of this hearing. Appellate decisions are often necessarily grounded upon a record and lack of same is a fatal omission in many appeals. We also note we were not favored with examples of the alleged excessive pre-trial publicity.

      . We note that this cited case involved a sentencing proceeding not a pre-trial proceeding. However we see no reason why the samé criteria should not apply to both as we shall discuss hereafter.

      . See also the language of Appellate Rule 9.100(d) (1978) which refers to trial court orders excluding the press:
      “A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding . . .

      . The defendant here claims no right to trial under the 6th Amendment in the district where the crime was committed. See Allegrezza v. Superior Court of Alameda County, 47 Cal.App.3d 948, 121 Cal.Rptr. 245 (1975).

      . Indeed we cannot be certain that details of the confession involved will not be featured in the locality to which the case is transferred, if transferral becomes necessary.

      . Gannett approved a trial court’s closure of a suppression hearing and temporary sealing of the record where the trial court found that an . open proceeding would pose a reasonable probability of prejudice to the defendant. Gannett, supra, at 2912. The trial court’s finding here that closure was necessary to assure the defendant a fair trial constitutes almost an identical finding.

      . See Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) and Miami Herald Publishing v. McIntosh, 340 So.2d 904 (Fla. 1977). Interestingly, in contrast to the case at hand, Justice England filed a special concurrence in McIntosh citing Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683, and noting that the case was “really quite easy” because it involved an “order least capable of withstanding constitutional scrutiny — one which imposes a prior restraint on reporting a public trial without notice to the media or any opportunity to be heard, and without any factual foundation demonstrating a need for the restraint.”

      . Interestingly, a footnote to the ABA commentary criticizes the New York Court of Appeals decision that was ultimately approved by the U.S. Supreme Court in Gannett:

      Although there is authority holding that preliminary proceedings are not within the meaning of the sixth amendment, Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977), the great majority of courts have rejected that view. See, e. g., United States v. Clark, 475 F.2d 240 (2d Cir. 1973); Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969) (en banc). Id. at 15, fn. 1.

      . Gannett, supra, dissent at 2937.

      . Gannett, supra, at 2912-2913.

      . Gannett, supra, at 2905, fn. 6.

      . No standard is set out in the majority opinion in Gannett. Rather, trial judges have been told that they have “an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity” and should be “over-cautious” to take protective measures for the defendant’s protection even when they are not “strictly and inescapably necessary.” The trial court finding approved by Gannett had concluded that an open proceeding would pose a - “reasonable probability of prejudice to [the] defendants.” Id. at 2904, 2905, 2912.

      . For a discussion of the rights of a defendant to be considered in determining the closure issue see the opinion of Wachtler, J. in Westchester Rockland v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630, 399 N.E.2d 518, New York Court of Appeals, November 20, 1979, 5 Med.L.Rptr. 2009 at 2014-2015.

      . This does not mean that exceptional situations will not sometimes occur which will require closure. The disclosure of an inadmissible statement in a highly publicized case, for instance,. could possibly constitute sufficient cause. In Oliver v. State, 250 So.2d 888 (Fla.1971), the Supreme Court first ruled that the statements involved should have been suppressed before announcing the general rule as noted in the majority pertaining to the featuring' of confessions in the media. In Hoy v. State, 353 So.2d 826 (Fla.1978), the Supreme Court distinguished Oliver in a case where a police official’s reports of the defendant’s statements had been publicized in advance of trial.

      . Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla.1977).

      . Gannett Company v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

      . See Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979).


source: Caselaw Access Project

author: McCORD, Judge. BOOTH, Judge, McCORD, Judge.

license: Public Domain

text:
    CAST CRETE CORPORATION and R. P. Hewitt & Associates, Appellants, v. Leonard DUNCAN, Appellee.
    No. QQ-322.
    District Court of Appeal of Florida, First District.
    March 12, 1980.
    On Rehearing and Clarification April 25, 1980.

      Michael A. Miller and Donna L. Bergh, Orlando, for appellants.
    Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from an award to appellee of workers’ compensation benefits for a 30% permanent partial disability. The compensation award was based on a preexisting emphysema condition which evidence indicated was aggravated by appellee’s employment as a welder. We reverse the JIC’s finding that Duncan suffers an occupational disease and remand for further consideration.

The Judge of Industrial Claims made a specific finding that appellee Duncan had developed emphysema over a period of years, due in part to his smoking. She further found that the emphysema condition was aggravated or accelerated by the inhalation of noxious fumes from the welding Duncan did in his employment at Cast Crete. A lawyer/chemist, Dr. Feuer, testified that welding produces ozone and zinc oxide, which can aggravate an emphysema condition. Another doctor testified that, in his opinion, Duncan’s emphysema was aggravated by his exposure to ozone. A third doctor testified that although ozone and zinc oxide can aggravate emphysema, in his opinion Duncan was not exposed to those gases for a sufficient period of time for them to have aggravated his emphysema.

In her order, the Judge of Industrial Claims made the finding that Duncan sustained an occupational disease in the course of his employment resulting in emphysema and chronic bronchitis. She found Duncan to be temporarily totally disabled for a certain period due to the occupational disease and concluded that Duncan suffers a 30% permanent partial disability of the body as a whole as a result of the disease.

Under § 440.151(1)(a), Florida Statutes, for a claimant to be compensated for an “occupational disease,” the disease must have been actually contracted while the claimant was engaged in the nature of employment in which he was engaged under the employer against whom he is claiming. Also, the nature of that employment must have created a particular hazard of such disease. See Kidd Electric Co. v. Kidd, IRC Order 2-3246 (1977). The Judge of Industrial Claims erred in classifying Duncan’s emphysema as an occupational disease since she found it developed over a period of years prior to Duncan’s employment as a welder and it was only aggravated by Duncan’s working conditions. There was no evidence or claim that Duncan had previously been engaged in this nature of employment. Duncan’s problems should probably be classified as an aggravation of a preexisting condition governed by § 440-02(18), Florida Statutes. Cf., Czepial v. Krohne Roofing Co., 93 So.2d 84 (Fla.1957). The task of making that determination pursuant to the applicable law in that area should be referred to the JIC.

As to the remaining points raised by both parties, we find that the record contains competent, substantial evidence to support the JIC’s finding of proper notice, of temporary total disability from January to August 1975, and of a 30% permanent partial disability. The JIC also was justified in rejecting Duncan’s claim of employer liability for injuries resulting from a fall from a tree.

REVERSED and REMANDED for reconsideration of Duncan’s claim in light of his opinion and for review of attorney’s fees in keeping herewith.

MILLS, C. J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.

ON MOTION FOR REHEARING AND CLARIFICATION

McCORD, Judge.

Appellant has filed a motion for rehearing and clarification calling attention to a portion of the transcript in which counsel for the claimant limited the claim to a claim for compensation as a result of an occupational disease. Appellant concludes that the Judge of Industrial Claims could not, as this Court indicates it might, rule that the claimant suffered an aggravation of a pre-existing condition due to an accident. While that conclusion is correct as a general statement, in view of the circumstances of this case as set forth in our opinion, we find that upon remand the Judge of Industrial Claims can rule upon the question of aggravation of a pre-exist-ing condition due to repeated exposure to noxious fumes provided she can so rule on the basis of the present record without procedural prejudice to appellant. If she finds that procedural prejudice would result, she should allow the parties to present additional evidence as may be necessary to eliminate such prejudice.

Reversed and remanded for further proceedings consistent herewith.

MILLS, C. J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge, dissenting.

I dissent as previously stated.

      . Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla. 1957); Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1961); Keller Building Products of St. Petersburg v. Shirley, IRC Order 2-3263 (1977).


author: BARKDULL, Judge. BASKIN, Judge

text:
    Eric Paul DURCAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1211.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Rehearing Denied May 28, 1980.
    Weiner, Robbins, Tunkey & Ross and Jeffrey S. Weiner, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   BARKDULL, Judge.

The appellant was charged in 1975 by information with several crimes. He came on for trial, represented by private counsel. In his presence counsel waived, in open court, the defendant’s right to a jury trial and the defendant executed the appropriate written waiver. Thereafter, he was convicted by the trial court without a jury, adjudicated and sentenced. An appeal of such conviction was made to this court. See: Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977). This appeal was prosecuted by private counsel on the appellant’s behalf and resulted in an order of affirmance.

Some three years later the defendant filed a motion pursuant to Rules of Criminal Procedure 3.850, seeking to vacate his conviction and sentence, alleging that he had not voluntarily waived his right to a jury trial. The trial judge denied the petition and this appeal ensued.

The appellant contends that the right to jury trial is a fundamental constitutional right that could not have been waived by failure to urge it in the direct appeal from the conviction. We disagree. The courts of this State and other courts have held that constitutional rights not urged on direct appeal may be waived and will not support a subsequent collateral attack when the alleged violation of the constitutional right was known by the defendant at the time of the direct appeal.

In the instant case, it is clear that the defendant knew that he was being tried non-jury; that he executed the jury form; that he never raised a specific objection at any time in the trial proceedings; that he should have had a jury trial. Notwithstanding the fact that when the trial originally opened there was a jury present, he heard his counsel waive his right to a jury; he executed the waiver; he saw the judge discharge the jury. We hold that it now comes too late to hear that he was deprived of his constitutional right to a jury trial. Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Jones v. State, 248 So.2d 517 (Fla.3d DCA 1971); Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976); Ellison v. State, 349 So.2d 731 (Fla.3d DCA 1977); Pegues v. State, 361 So.2d 433 (Fla.1st DCA 1978); Clark v. State, 363 So.2d 331 (Fla.1978); Rubin v. State, 368 So.2d 69 (Fla.3d DCA 1979). Further, the trial court, in denying the Rule 1 motion, found that he had voluntarily waived his right to a jury trial at the time of the original trial proceedings. We find that the trial judge’s order in this regard is amply supported by the evidence and, therefore, the appellant has made no error appear on the merits of the voluntariness of his waiver of jury trial. Swarthout v. State, 165 So.2d 773 (Fla.3d DCA 1964); Carroll v. State, 186 So.2d 834 (Fla.4th DCA 1966); Cash v. State, 207 So.2d 18 (Fla.3d DCA 1968).

Therefore, the order under review be and the same is hereby affirmed.

Affirmed.

BASKIN, Judge

(dissenting).

I disagree with the majority decision that the defendant’s failure to raise the denial of his constitutional right to a jury trial on appeal waives that .issue. In my view, the right to a jury trial is not only a constitutional right but is a constitutional right of such magnitude that its deprivation creates fundamental error. It cannot be forfeited without a knowing intentional waiver.

Trial by jury is a fundamental right. As stated in Floyd v. State, 90 So.2d 105, 106 (Fla.1956):

The right of an accused to trial by jury is one of the most fundamental rights guaranteed by our system of government. The Declaration of Rights, Constitution of the State of Florida, Section 3, F.S.A., reads “The right of trial by jury shall be secured to all, and remain inviolate forever”. Section 11, Provides that an accused shall have a trial “ * * * by an impartial jury * *

The right to a trial by jury is so basic to our system of justice that a denial of the right goes to the foundation of the case and constitutes fundamental error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Roth v. State, 368 So.2d 1310 (Fla.3d DCA 1979); and Clark v. State, 363 So.2d 331 (Fla.1978).

Failure to make an objection at the trial level or to raise the matter as an issue on appeal does not preclude consideration of fundamental error. Roth v. State, supra; Cheatham v. State, 364 So.2d 83 (Fla.3d DCA 1978); and Young v. State, 177 So.2d 345 (Fla.2d DCA 1965). Where the error is apparent on the record, courts will raise the issue themselves and consider the merits. Wyche v. State, 178 So.2d 875 (Fla.2d DCA 1965). The record must disclose that the aggrieved party intentionally waived any fundamental error before he loses the right to complain about the harm. Rollins v. State, 194 So.2d 247 (Fla.1967). Since I cannot find that the defendant knowingly waived any right to complain about the error, I cannot agree that our consideration of this matter is foreclosed.

I disagree with the lower court’s assessment of the evidence presented at trial and at the evidentiary hearing as competent to show the defendant knowingly and voluntarily waived his right to a jury trial. In contradiction of the oral waiver of jury by defendant’s counsel and the written waiver signed by defendant at the judge’s request, the transcript discloses that the defendant did not fully understand the nature of the proceedings and the rights he was relinquishing:

THE COURT: Bring in the jury.
MR. NEGRETTI: At this time, the Defendant would move, respectfully, urging to be tried by the Court. He waives trial by jury.
MR. YOSS: Judge, one thing, as I indicated earlier, we have an out-of-state witness. No objection, Your Honor, to a non-jury trial.
THE COURT: Thank you ladies and gentlemen, you are excused.
MR. CHOATE: Your Honor, we have - only two witnesses present.
MR. NEGRETTI: Judge, I ask for a continuance.
THE COURT: Let us proceed. Have Mr. Durcan execute the waiver.
MR. DURCAN: Sir, I am the subject involved here. My life is at stake. I see nothing being done that makes any sense so far.
THE COURT: You have waived a jury and are ready to proceed.
MR. YOSS: The State will call Dalia Merlo. Has the waiver been executed, Judge?
THE CLERK: The waiver has not been executed.
MR. CHOATE: With the Court’s permission, I have two preliminary hearings left, and I will be back immediately after.
MR. YOSS: Let the record reflect the waiver has been executed.

At the evidentiary hearing, the defendant testified that he had not understood the meaning of the waiver, but had merely followed the court’s order and signed the paper. The totality of the circumstances in this case cannot support the lower court’s finding that the defendant knowingly and voluntarily waived his right to a jury trial. See: Tosta v. State, 352 So.2d 526 (Fla.4th DCA 1977); Molfetas v. State, 323 So.2d 598 (Fla.3d DCA 1975). See generally: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Russell v. State, 342 So.2d 96 (Fla.3d DCA 1977); and Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972). Contra, Kinser v. State, 291 So.2d 80 (Fla.3d DCA 1974).

In my view, an improper denial of a jury trial is fundamental constitutional error of such magnitude that it may be attacked by a collateral proceeding. For the foregoing reasons, I would reverse the decision of the trial court, vacate the judgment, and remand for a new trial.


author: ORFINGER, Judge.

text:
    BLACKTON BUILDING SUPPLY CO., INC., etc., Appellant, v. Winston L. GARESCHE et ux., Appellees.
    No. 78-1740/T4-178.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Rehearing Denied May 13, 1980.

      Ronald A. Cyril, of Nelson, Hesse, Cyril, Weber & Smith, Sarasota, for appellant.
    F. Hartselle Baker, Orlando, for appel-lees.
   ORFINGER, Judge.

. This is an appeal from a final judgment awarding damages to appellees consequent upon a jury verdict in their favor. The appellant is a distributor of a product known as Tex-Cote, a product applied as an exterior coating to homes and other structures. The appellees were consumers to whose residence the product was applied by a contractor who purchased' the product from the appellant.

Appellees had filed suit against the manufacturer of the product, the contractor who applied it and the appellant, who was the retailer or distributor. The first count alleged breach of express warranty against all three defendants; the second count was based on the alleged fraud and misrepresentation of all three defendants in' the brochures advertising the product, and the third count was based on negligence of the contractor in applying the product in a manner contrary to instructions and of the appellant distributor in selling the product to the contractor when it had reason to believe that he would not follow instructions. Although guaranteed by the manufacturer not to crack or peel, the product as applied did crack and peel and the appellees sought damages to cover the cost of removal and refinishing. There was no issue as to the validity or integrity of the manufacturer’s guarantee and the evidence showed its willingness to correct the problem. The appellees, however, wanted the product removed from their building.

The jury returned a special verdict in which it found that neither the manufacturer nor the appellant distributor was guilty of any fraud or misrepresentation and that neither the manufacturer nor the appellant, distributor was guilty of any breach of express warranty. The special verdict found the contractor guilty on all three counts, and it also found the appellant negligent. Damages of $2500 were assessed against the distributor and the contractor. The contractor has not appealed, but the distributor appeals the judgment, claiming that the evidence is completely devoid of any evidence showing a breach of any duty owed by it to the appellees. We agree and reverse.

The verdict of the jury makes it clear that the product was safe and non-defective and was not misrepresented by either the manufacturer or the distributor. Before a defendant can be held liable for damages for negligence, it is fundamental that the .plaintiff must establish the existence of a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains, the failure of the defendant to perform that duty .and injury or damage to plaintiff proximately caused by such failure. Lake Park Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); 23 Fla.Jur. Negligence, Sec. 10; Restatement of Torts 2d, Sec. 430. Appellee cites us to no authority which imposes on a retailer or distributor of a safe non-defective product the duty to oversee its use by a third party over whose actions the distributor has no control. There is no evidence of an agency relationship between the seller and the applicator of the product with whom the appellees contracted for the work. The jury had a right to find, as it did, that the applicator was negligent in applying the product, but there was no evidence before it on which it could hold the appellant liable for the applicator’s negligence, nor any evidence of any breach by appellant of a duty owed to appellee.

The trial judge was in error in not granting appellant’s motion for a directed verdict on the negligence count, so the judgment entered against appellant is vacated and set aside, and this cause is reversed with directions to enter judgment for the appellant.

REVERSED.

CROSS and SHARP, JJ., concur.

      . This is the second appearance of this case before an appellate court. The first case is reported as Garesche v. Textured Coatings of America, Inc., 352 So.2d 1207 (Fla. 4th DCA 1977). There the court reversed a directed ver-diet for all defendants, holding there to be sufficient evidence of misrepresentation of the product to make a prima facie case. The jury has now dispelled the claim of misrepresentation by the verdict sub judice.


author: DANAHY, Judge.

text:
    Ronald E. PEREZ, Appellant and Cross-Appellee, v. Marjorie P. PEREZ, Appellee and Cross-Appellant.
    No. 79-314.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    Rehearing Denied May 13, 1980.
    David A. Maney of Gordon & Maney, Tampa, for appellant and cross-appellee.
    Arnold Levine and Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appellee and cross-appellant.
   DANAHY, Judge.

This is an appeal by the husband and a cross-appeal by the wife from a final judgment of dissolution of marriage. The husband complains that the trial judge erred in awarding the wife the sum of $1,000 per month permanent periodic alimony plus an automobile and the husband’s interest in the marital home as lump sum alimony. The wife contends that the trial judge erred in finding that the husband had a special equity in Pasco County property held in the names of the parties as tenants by the entireties and directing the wife to convey, all of her interest in that property to her husband.

After oral argument in this case, our supreme court rendered its landmark decision on the subject of alimony in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In Canakaris, the court discussed at length the appropriate criteria for the award of different types of alimony which, together with child support and the related elements of “special equity” and “exclusive possession of property,” are remedies available to a trial judge to accomplish the purpose of apportioning assets acquired by the parties and providing necessary support. In a companion case the court discussed what spousal contributions establish a “special equity” and what are the criteria for exclusive possession awards. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). The supreme court reminded us in Canakaris that the remedies selected by a trial judge to resolve the problem of apportioning assets and providing necessary support are part of one overall scheme, and should be reviewed by appellate courts as a whole, rather than independently.

We have the option of assessing the awards of alimony in the present posture of this case according to the Canakaris standards even though the trial judge did not have the benefit of Canakaris in reaching his decision. Were we to apply Canakaris at this point in the case, we might affirm on the ground that no abuse of discretion on the part of the trial judge has been demonstrated. We might also affirm that part of the final judgment directing the wife to convey to the husband her interest in the Pasco County property. We disagree with the trial judge’s conclusion that the husband established a special equity in that property; a special equity in property held as tenants by the entireties will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child rearing responsibilities. Duncan v. Duncan, supra. Nevertheless, we believe the trial judge could correctly have declared a constructive trust of the wife’s interest in favor of the husband. Williams v. Grogan, 100 So.2d 407 (Fla.1958).

The facts of this case, however, persuade us that the trial judge should be given an opportunity to reconsider the alimony awards to the wife in the light of the supreme court’s decision in Canakaris. The record indicates that during the eleven-year marriage of the parties, the husband acquired assets (including the Pasco County property) several times greater in value than the wife’s assets (including the marital home). Canakaris holds that in the achievement of equity between the parties, it is within the discretion of the trial judge to use a lump sum alimony award to accomplish an equitable distribution of marital property. Before Canakaris, it was not clear to trial judges whether that remedy was available, and the trial judge may not have considered its use in this case.

In order to give the trial judge that opportunity, we reverse and remand with instructions to conduct a further hearing on the question of what alimony awards are appropriate in this case under the principles enunciated in Canakaris v. Canakaris. The trial judge may receive additional evidence bearing on that question.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and RYDER, J., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. James CRAMER, Appellee.
    No. 79-1354.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    Rehearing Denied May 15, 1980.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    John T. Cook, South Pasadena, for appel-lee.
   RYDER, Judge.

The State appeals dismissal of its information for possession of cocaine, pursuant to Florida Rules of Criminal Procedure 3.190(c)(4). The motion for dismissal alleged that small glass vials of cocaine were found on top of a dresser in a room in which appellant was sleeping. The residence and dresser top were shared by appellant and another. Appellant failed to preserve for appeal any objection to the State’s traverse, which added the fact that a gun found next to the cocaine had been brandished by appellant shortly before police arrived on the scene.

We find these facts sufficient to set out a prima facie case to withstand a motion to dismiss. State v. Savarino, 381 So.2d 734 (Fla.2d DCA 1980). Whether the State can prove constructive possession at trial by refuting all reasonable hypotheses of innocence to this circumstantial evidence must be decided at the close of evidence. On motion to dismiss, the State need show only a prima facie Gase.

REVERSED and REMANDED for further proceedings.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


author: GRIMES, Chief Judge.

text:
    AMBASSADOR INSURANCE COMPANY, a Foreign Corporation, Petitioner, v. HIGHLANDS GENERAL HOSPITAL et al., Respondents.
    No. 79-2317.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    Rehearing Denied May 13, 1980.

      Victor H. Womack of Lanza, Sevier & Womack, P. A., Coral Gables, for petitioner.
    Charles H. Livingston of Livingston, Patterson & Strickland, P. A., Sarasota, for respondents.
   GRIMES, Chief Judge.

In this petition for certiorari and prohibition Ambassador Insurance Company attacks the trial court’s entry of an order striking its' notice of voluntary dismissal.

Ambassador, a foreign corporation, sued to recover premiums on an insurance policy issued to the Highlands General Hospital. The hospital moved to dismiss on the ground that Ambassador was doing business in Florida but had not registered with the Department of State. On September 12,1977, the court entered an order dismissing the complaint on this ground pursuant to Section 607.354, Florida Statutes (1977), but granted Ambassador sixty days within which to qualify with the Department of State as a foreign corporation authorized to transact business within the state. The court entered a supplemental order on September 21, 1977, which made clear that its prior dismissal was without prejudice. No further action was taken in the case until October 26, 1979, when Ambassador filed a notice of voluntary dismissal without prejudice. Thereafter, upon motion to strike filed by the hospital, the court entered an order striking the voluntary dismissal.

Ambassador contends that the court had no authority to strike the voluntary dismissal. Ambassador’s concern over the adverse effect of this order has to do with a case involving the same issue presently pending before the Fifth Circuit Court of Appeals in which the hospital is apparently arguing that the federal courts are bound by the dismissal of Ambassador’s state court action.

While there are no decisions precisely on point, the case of Gate City, Inc. v. Arnold Construction Co., 243 So.2d 637 (Fla.4th DCA 1971), is analogous. There, the court had dismissed the complaint with leave to amend within a stated time. When the plaintiff did not file an amended complaint prior to the expiration of the time, one of the two defendants moved for summary judgment. Plaintiff then filed an amended complaint without naming this particular defendant but still praying for a lien on its land. A few minutes prior to the hearing on the motion for summary judgment the plaintiff filed a notice of voluntary dismissal as to that defendant. Nevertheless, the court went on to grant summary judgment in the defendant’s favor. On appeal our sister court reversed, reasoning that because the order of dismissal granted leave to amend, it was an interlocutory order. Therefore, the plaintiff could still file a voluntary dismissal. See also Hancock v. Piper, 186 So.2d 489 (Fla.1966).

The order of dismissal which granted Ambassador sixty days to qualify with the Department of State was clearly an interlocutory order. Even though Ambassador made no showing that it had ever taken the steps necessary to qualify, the court never entered an order of final dismissal. Consequently, the case remained pending, and Ambassador had the absolute right to file a voluntary dismissal. Fears v. Lunsford, 314 So.2d 578 (Fla.1975).

The court’s order striking the notice of voluntary dismissal constituted an act in excess of its jurisdiction and a departure from the essential requirements of law. Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla.4th DCA 1979). Accordingly, we grant the petition for a writ of certiora-ri and quash the order.

HOBSON and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    David BALTER, Appellant, v. PAN AMERICAN BANK OF HIALEAH, Appellee.
    No. 78-800.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 30, 1980.
    Bailey & Dawes and Guy B. Bailey, for appellant.
    Smathers & Thompson and Shepherd D. Johnston, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This appeal arose out of a claim for breach of contract asserted by Mr. Balter, the appellant/plaintiff, against Pan American Bank of Hialeah regarding a loan of money to appellant’s corporation under an approved plan of arrangement. The bank had refused to go through with the loan and plaintiff sued. The cause proceeded to trial, and at the conclusion of the plaintiff’s case the bank moved for a directed verdict. The trial court granted the motion and plaintiff appeals, contending that the trial court erred in directing a verdict for the-appellee/defendant and that the jury, if it had had an opportunity to evaluate the plaintiff’s evidence, would have returned a verdict for the plaintiff. We find no merit in the arguments advanced by appellant, and agree with the trial court that there was no enforceable contract entered into, the parties were merely negotiating as to the terms to be yet reached. It is apparent that the essentials of a binding loan agreement were conspicuously absent. There was no understanding as to the exact amount of money, the interest rate or time and method of repayment; furthermore, nothing was ever signed and no documents were exchanged between the parties. We affirm on the authority of Calosso v. First National Bank of Pompano Beach, 143 So.2d 343 (Fla.2d DCA 1962). Compare, Bluevack Inc. v. Walter E. Heller & Company of Florida, 331 So.2d 359 (Fla.3d DCA 1976). The conversations between the parties constitute merely preliminary negotiations. See Bluevack, supra, and Goff v. Indian Lake Estates, Inc., 178 So.2d 910 (Fla.2d DCA 1965).

Further support for the affirmance of the trial court’s order is found in the record which shows that there was no consideration by Mr. Balter for the bank’s alleged promise to lend money. As so aptly stated by the appellee, where there is no mutuality of obligation, the necessary element of consideration is lacking and the “contract” is void. No purported agreement can be valid which binds one party but not the other; in such a case there is a fatal lack of mutuality. or reciprocity required to make an agreement binding on any party. Such mutuality of obligation is essential to the formation of a bilateral contract such as appellant contends was formed between the parties. See Ivey Plants, Inc. v. FMC Corporation, 282 So.2d 205 (Fla. 4th DCA 1973); 17 Am.Jur.2d Contracts § 11; 11 Fla.Jur.2d Contracts § 56; 7 Fla.Jur. Contracts § 9.

Accordingly, the judgment appealed is affirmed.

      . It seems that three months prior to the time that negotiations were going on between Mr. Baiter and the bank regarding the loan, appellant had filed a Chapter XI Petition in Bankruptcy.

      . Actually there are multiple defendants, but the count relating to the alleged breach of contract to loan money was against the bank, only.


author: SCHWARTZ, Judge.

text:
    NATIONAL BRANDS TIRE COMPANY, INC., a Florida Corporation, Appellant, v. DEPARTMENT OF REVENUE, consisting of Reubin O’D. Askew, a Governor of Florida, and Secretary of State of Florida, the Attorney General of Florida, the Comptroller of Florida, the Treasurer of Florida, the Commissioner of Education, and Harry L. Coe, Jr., Executive Director of the State of Florida, Department of Revenue, Appellees.
    No. 79-1288.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 30, 1980.

      Ferrell & Ferrell and Milton M. Ferrell, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., and Linda C. Proc-ta, Asst. Atty. Gen., Tallahassee, for appel-lees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The taxpayer appeals from a declaratory judgment interpreting Section 212.17(3), Florida Statutes (1967), as it applied to stipulated facts. We affirm.

At the time of the events, involved in this case, the statute provided:

A dealer who has paid the tax imposed by this chapter on tangible personal property may take credit in any return filed under the provisions of this chapter for the tax paid by him on the unpaid balance due on accounts which during the period covered by the current return have been found to be worthless and are actually charged off for federal income tax purposes; provided, that if any accounts so charged off are thereafter in whole or in part paid to the dealer, the amount so paid shall be included in the first return filed after such collection and the tax paid accordingly, [e. s.]

The appellant attempted to claim credits under this provision for accounts which it had “found to be worthless” during the periods covered by the returns in which the claims were made, but which had been “actually charged off for federal income tax purposes” in prior periods. The trial judge, however, agreed with the position of the Department of Revenue that the statute required that the credit be claimed only in a single period in which both events occurred. So do we.

Purely as a matter of the rules of grammar, see Florida State Racing Commission v. Bourquardez, 42 So.2d 87 (Fla.1949); 30 Fla.Jur. Statutes § 93 (1974), it seems clear that the expression “which during the period covered by the current return” modifies and applies to both of the clauses which follow it. If the appellant’s contention were correct, the statute would have instead provided that a credit may be taken for “amounts which have been found to be worthless during the period covered by the current return and are actually charged off for federal income tax purposes.”

Furthermore, we agree with the department that National Brands’ view would permit a taxpayer to write a bad debt off for federal income tax purposes and then claim the sales tax credit at any subsequent time — no matter how long af-terwards — it chose. This reading of the statute would render its timing provisions meaningless and superfluous, and is therefore not an acceptable one. See 30 Fla.Jur. Statutes § 118 (1974), and cases cited.

Finally, the appellant has, at most, raised an ambiguity in the language employed by the legislature. But it is established that Section 212.17(3), Florida Statutes (1967), provides only for a credit upon an otherwise existing tax obligation and thus constitutes an exception to the general sales tax law. Estate of W.T. Grant Co. v. Lewis, 358 So.2d 76 (Fla. 1st DCA 1978), aff’d., 370 So.2d 764 (Fla.1979). It is therefore essentially an embodiment of legislative grace which must be strictly construed against the taxpayer and in favor of the taxing authority. State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973); United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958). The application of this rule to the issue before us renders the propriety of the construction adopted below all the more certain.

Affirmed.

      . The provision was significantly amended by Chapter 78-23, § 1, Laws of Fla. (effective May 8, 1978).

      . Ibid.

      . See State ex rel. Brunswick Corp. v. Kirk, 204 So.2d 4 (Fla.1967), which held that there was no right to a sales tax refund as to repossessed property, without a statutory provision to that effect. The holding in Kirk apparently inspired the enactment of § 212.17(3).


text:
    Sally DYSART, Appellant, v. Robert HUNT, Appellee.
    No. 79-1932.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 30, 1980.

      Joseph Pardo, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The plaintiff below, Sally Dysart, who prevailed before a jury in a replevin .action, challenges the rulings of the trial court in striking and refusing to enter judgment upon that portion of the verdict which awarded her $75,000 in money damages. We affirm on the basis of our agreement with the trial judge that the claim for money damages was neither raised in the pleadings nor tried by the express or implied consent of the parties.

The complaint in this case, which was never amended, alleged and claimed only the right to the possession of the personal property in question. Unlike even the form replevin complaint, Form 1.937, Fla.R.Civ.P., it specifically did not contain a demand for damages for the detention of the property. Indeed, the first and only specific reference to a request for money damages appeared in the plaintiff’s requested jury instructions on the subject, which were submitted at the conclusion of the trial and to which defense counsel immediately objected. Moreover, the record demonstrates that the evidence, relied upon by the plaintiff to support the damages charge and verdict was fully consistent with and pertinent to the plaintiff’s position on the issue which was framed by the pleadings and which was actually being tried: the right to the possession of the property in dispute. There is thus no basis for finding that the defendant’s failure to object to that evidence constituted an express or implied consent to try the unpled and quite different damage question, so as to invoke the provisions of Fla.R.Civ.P. 1.190(b). Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA 1976), cert. denied, 339 So.2d 1167 (1976); Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968); Neveils v. Thagard, 145 So.2d 495, 498 (Fla. 1st DCA 1962); Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA 1960), cert. denied, 125 So.2d 878 (1960); Edwards v. Young, 107 So.2d 244 (Fla. 2d DCA 1958); compare Batista v. Walter & Bernstein, P.A., 378 So.2d 1321 (Fla. 3d DCA 1980). The ease is therefore controlled by the familiar principle expressed in Cortina v. Cortina, 98 So.2d 334, 337 (Fla. 1957):

that a judgment upon a matter entirely outside of the issues made by thé pleadings cannot stand; and where,. as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.

Affirmed.

      . The trial judge wisely submitted the damages issue to the jury subject to the express understanding that, if the jury made such an award, he would set it aside. We commend and encourage this practice, which, if we disagreed (as we do not) with the court’s ruling on the merits of the issue, would have permitted the final resolution of the case without a second trial or a second appeal. See Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975); Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965).


author: BASKIN, JUDGE.

text:
    James H. THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2130.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied May 30, 1980.
    Steven G. Glucksman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, JUDGE.

James H. Thomas appeals the denial of his motion for post-conviction relief alleging ineffective assistance of counsel and the denial by the court of his right to participate as co-counsel. We find no error and affirm the decision of the trial court.

The issue of defendant’s right to participate as co-counsel was determined by this court to be without merit in Thomas v. State, 370 So.2d 1218 (Fla. 3d DCA 1979). That issue was therefore improperly raised in a subsequent motion to vacate. Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978).

Defendant’s allegation of ineffective assistance of the public defender is refuted by the record. Defense counsel testified that he had discussed the case and defense theories with defendant. The trial court resolved any issue of credibility against defendant. Plymale v. State, 201 So.2d 85 (Fla. 3d DCA 1967). Defense counsel filed pre-trial motions, made objections during trial, cross-examined witnesses, argued a motion for judgment of acquittal, and requested specific jury instructions. Although defense counsel did not require defendant to testify, we find counsel’s conduct of the trial to be acceptable trial strategy upon consideration of the impeachment value of the defendant’s five prior felony convictions.

The decision of the trial court is therefore affirmed.


text:
    Mariano PASQUA, Jr., d/b/a Pop’s Place and Pop’s Place, Inc., Appellant, v. Fred BURNS, Appellee.
    No. 79-1307.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied May 30, 1980.
    Raymond E. Badini, Miami, for appellant.

      Peters, Pickle, Flynn, Niemoeller, Steig-litz & Hart and Richard G. Daniels, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Defendant appeals from an adverse judgment entered pursuant to a jury verdict in a damage action arising out of an assault and battery by an employee of appellant’s bar upon the appellee while in the bar.

We have considered the points on appeal in the light of the record on appeal and briefs and have concluded that no reversible error has been demonstrated. See Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla.2d DCA 1979); Dade County v. O.K. Auto Parts of Miami, Inc., 360 So.2d 441 (Fla.3d DCA 1978); Collard v. Keeton, 317 So.2d 121 (Fla.3d DCA 1975); Forster v. Red Top Sedan Service, Inc., 257 So.2d 95 (Fla.3d DCA 1972); Sixty-Six, Inc. v. Finley, 224 So.2d 381 (Fla.3d DCA 1969); Sands v. Ivy Liquors, Inc., 192 So.2d 775 (Fla.3d DCA 1966); Hill v. Sadler, 186 So.2d 52 (Fla.2d DCA 1966); and Columbia by the Sea v. Petty, 157 So.2d 190 (Fla.2d DCA 1963).

Affirmed.


author: PER CURIAM.'

text:
    William Robert JACOBSEN, Appellant, v. MONROE COUNTY, Florida, a political subdivision of the State of Florida; Detective L. A. Meggs; Detective D. R. Stewart; and Detective C. L. Major, Appellees.
    No. 79-1630.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied May 30, 1980.
    Franklin, Entin, Kimler & Marks, North Miami Beach, for appellant.
    Madigan, Parker,- Gatlin, Swedmark & Skelding, Tallahassee, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.'

Affirmed. Gallucci v. Milavic, 100 So.2d 375 (Fla.1958); Kern v. Modernage Furniture Corporation, 125 So.2d 893 (Fla.3d DCA 1961); cert. discharged, 135 So.2d 715 (Fla.1961).


text:
    ZAYRES DEPARTMENT STORES, Appellant, v. Bernardo FINGERHUT and Regina Fingerhut, Appellees.
    No. 79-2388.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Rehearing Denied May 30, 1980.

      Adams & Ward and Robert C. Ward, Miami, for appellant.
    Goldstein Professional Ass’n and Caron Balkany, Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Zayres Department Stores (Zayres), defendant in an action for damages for alleged false imprisonment and malicious prosecution, appeals from an order striking its defensive pleadings for failure to make timely compliance with an order to supply better answers to certain interrogatories. We find error and reverse.

The appellant contends, and we are impelled to agree, that in consideration of the nature of the case and the circumstances involved the drastic sanction imposed by the trial court of striking appellant’s defensive pleadings and directing the cause to proceed to trial on damages (in effect the equivalent of directing a verdict in favor of the plaintiffs on liability) was excessive.

The action was filed by Bernardo Finger-hut and his wife against Zayres and two of its employees, alleging that based on a false charge of retail theft (of a pair of shoes) Fingerhut was falsely imprisoned and maliciously prosecuted, for which Fingerhut sought compensatory and punitive damages. The complaint contained a separate count seeking damages for alleged interference with Fingerhut’s pecuniary interests, alleging Zayres had hindered his claim for unemployment compensation by having falsely' claimed that Fingerhut was discharged previously by Zayres for cause. In another count the plaintiff’s wife claimed damages for loss of consortium.

Simultaneously with the filing of the complaint the plaintiffs filed a motion to produce, request for admissions and seventy-two written interrogatories. The defendants filed answer. As to the counts relating to false imprisonment and malicious prosecution defendants denied the material allegations as to liability, and in defense averred there was probable cause to detain and prosecute the plaintiff. As to the two other counts, said defendants filed motions to dismiss. Objections filed by Zayres to the interrogatories were overruled. ,

After answers by Zayres to the interrogatories, plaintiffs moved for an order requiring better answers to fifteen of the seventy-two interrogatories. An agreed order was entered allowing an additional thirty days to comply. Three months thereafter the plaintiff filed a motion stating that better answers to such interrogatories had not been made, and moving for an order “to strike the defendants’ pleadings, or in the alternative, to enter a default against the defendants, or to assess costs and attorney fees incurred in bringing this motion.” Following a hearing on that motion which was held on November 8, 1979, an order was entered which required Zayres to file such better answers to interrogatories numbered 57,.58, 60, 62, 64, 69 and 70, on or before November 12, 1979. The date of that hearing and order (November 8) was a Thursday. The ensuing Monday, the 12th, was a holiday.

On November 15 the plaintiff moved for an order striking the defendants’ pleadings for failure of defendants to have complied with the order of November 8 within the time required by that order. Hearing thereon was noticed for November 20. Further answers to said interrogatories, as called for by the order of November 8, were filed and served by Zayres on November 16, prior to said such hearing.

On November 21, 1979, after hearing on plaintiffs’ motion for sanctions, the court entered the order appealed from, reciting willful violation by Zayres of the order of the court, and striking Zayres’ pleadings and directing trial to be held on damages only.

Zayres moved for rehearing. Therewith it was represented to the court that counsel had used diligence but had been unable to make timely compliance with the order; and that counsel had been confused as to the date for compliance, and had not received a copy of the order until November 14; and averring absence of any prejudice to the plaintiff by reason of the answers having been filed after the time specified in the order. Supporting the motion for rehearing was an affidavit of Zayres’ attorney stating the answers to interrogatories had been filed and served on November 16, 1979. Attached to the affidavit was a list of three similar type actions which were pending against Zayres, being the only known record of such actions against Zayres. The motion for rehearing was denied.

Patently, there had been a period of foot-dragging by the defendant, as to the interrogatories, after the earlier consent order fixing thirty days as the time for filing better answers to certain interrogatories. However, when the plaintiff moved for imposition of sanctions for that delay by defendant, the court did not impose any sanction, but ordered the filing of such answers by November 12, 1979.

The purpose of the inquiries to be so answered was to obtain information as to other occasions on which Zayres had been involved in cases of this kind, and as to other occasions when the defendant-employees had had similar experiences in other such matters. As to the former, on rehearing it was explained by defendant that no such prior cases could be listed because Zayres had no record thereof, except for three pending cases, as to which information was supplied. Regarding queries as to prior experiences of that nature by the defendant-employees, the answer of Zayres on November 16 was that its knowledge thereof was that which was shown by said employees in their depositions which had been taken in this case.

The requested information as to prior such cases or experiences of Zayres, occurring at other times and under other facts and circumstances, would have been of little substantial value or materiality to the plaintiff. For such other prior cases, if there were any, to be of material assistance to plaintiff, the establishment of their ma: teriality, if any, would necessitate the equivalent of a collateral trial thereof. See Atlantic Coast Line R. Co. v. Campbell, 104 Fla. 274, 139 So. 886 (1932); Short v. Allen, 254 So.2d 34 (Fla. 3d DCA 1971); McArthur v. St. Louis-San Francisco Ry. Co., 306 So.2d 575, 579-580 (Fla. 1st DCA 1975). Obviously such information was not vital to the question of liability here, which would need to be determined on the facts of this case.

Nor was there a showing of any substantial prejudice to the plaintiff. Plaintiffs were in possession of Zayres’ complete investigation file relating to the incident involved. Trial of the case was not delayed because the answers which were due by November 13 were not presented until November 16. Trial of the case had been set for sometime in January, two months hence.

Fla.R.Civ.P. 1.380(a)(2) provides for entry of an order on motion to compel answer, when interrogatories are not answered as required by the rules. Subsection (b) of that rule deals with failure to comply with such an order. The options for action by the court upon non-compliance with such an order are (A) to treat the matters as to which the questions were asked as established [which generally would not be applicable in the case of written interrogatories]; (B) an order preventing the disobedient party from introducing such matters in evidence; (C) “An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it, or rendering a judgment by default against the disobedient party;” (D) instead of or in addition to the foregoing, an order treating as contempt the failure to obey any order (except orders for physical or mental examination); (E) relating to failure of a party to comply, with an order to produce another for examination, is inapplicable here; and (F) instead of or in addition to the foregoing orders, to require the party failing to obey the order “to pay reasonable expenses caused by the failure' that may include attorney’s fees, unless the court finds that the failure was justified or that othér circumstances make an award of expenses unjust.”

Clearly under the wording of the foregoing rule, the options of the court for Zayres’ failure to timely comply with the order for better answers to such interrogatories, included authority of the court to impose the sanction of striking the defendant’s pleadings. However, that most extreme of the sanctions which may be imposed is not provided to be used to punish or penalize a party (Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967); Leatherby Insurance Co. v. Jones, 332 So.2d 139 (Fla. 3d DCA 1976)) and should be imposed on the defendant only in extreme situations and for flagrant or aggravated cases of disobedience. Owens-Illinois Inc. v. Lewis, 260 So.2d 221 (Fla. 1st DCA 1972); Hurley v. Werly, supra; Goldstein v. Goldstein, 284 So.2d 225 (Fla. 3d DCA 1973); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). And only in extreme cases should that ultimate sanction be imposed bn a party when the failure to timely comply with a discovery order has not operated to prejudice the opposing party in any substantial manner. Masons Concrete v. Corvin Well Pump & Supply, 364 So.2d 824, 826 (Fla. 2d DCA 1978); Beaver Crane Service v. National Surety Corporation, 373 So.2d 88 (Fla. 3d DCA 1979). Moreover there was no showing that Zayres, the party, refused to give answers or better answers to interrogatories, or personally was tardy in doing so. Where, as in this case, the party’s counsel through confusion or otherwise was late in responding, for the court to strip the party of its defenses in a contested case of this kind would appear to be an excessive sanction, operating as a punishment of the litigant, rather than its counsel. Beasley v. Girten, 61 So.2d 179, 180-181 (Fla.1952); Travelers Insurance Company v. Rodriguez, supra (357 So.2d at 465); Masons Concrete v. Corvin Well Pump & Supply, supra.

Finally willful failure to comply, as recited in the court’s order, does not appear to have been established on the record. Zayres’ counsel asserted his good faith effort to comply; his confusion as to the time limit for compliance; inability to comply fully beeausé of absence of records of matters inquired about; and his actual compliance, three days late, to the extent possible and practicable. See Beaver Crane Service v. National Surety Corporation, supra.

In the circumstances presented we hold that the sanction consisting of striking Zayres’ defenses and ordering the cause to proceed to trial on damages only, was excessive, and amounted to abuse of discretion.

The order appealed from is reversed. This judgment shall not operate to deprive the trial court of jurisdiction to proceed, after remand, to impose upon the defendant Zayres some authorized lesser sanction which in the opinion of the court shall be just and proper in the circumstances.

It is so ordered.

      . In Herold v. Computer Components International Inc., 252 So.2d 576, 579 (Fla. 4th DCA 1971), the court said, “We feel there is a distinction between a refusal to answer and an incomplete or insufficient answer so far as it relates to a failure to comply with a court order pursuant thereto.” A refusal to answer can be regarded as deliberate. A failure to give a better answer after having answered, may or may not be a willful refusal, or it may be because of reasons which, although they may not be good reasons, will serve to disaffirm any willful defiance of the court. The latter situation could call for imposition of sanctions, but would not appear to be such as to justify the extreme sanction of dismissing a party’s cause or striking a party’s defense.


text:
    BERTRAM YACHT and Argonaut Insurance Company, Appellants, v. Juan VIVES, Appellee.
    No. QQ-341.
    District Court of Appeal of Florida, First District.
    May 6, 1980.

      Fredricka G. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    George M. Nachwalter and Jay M. Levy of Nachwalter, Christie & Falk, P. A., Miami, for appellee.
   PER CURIAM.

The employer/carrier appeals the judge of industrial claims’ order awarding claimant 75% permanent partial disability based on a scheduled injury and a psychiatric disability affecting the body as a whole. We reverse in part.

Vives was injured on October 3, 1974, when the tips of his index, middle and ring fingers were cut off by an electric saw. His claim was field and heard; an order was entered by the judge of industrial claims on October 27, 1975, finding that Vives was excused from a job search and awarding him permanent and total disability-

On July 27,1976, the Industrial Relations Commission reversed, ruling that claimant’s condition was not such as to excuse a job search and that his job search was inadequate for permanent and total disability. The Industrial Relations Commission agreed that claimant suffered permanent disability but limited compensation to the “schedule of benefits provided by § 440.-15(3), F.S.”, remanding for entry of an- order in accordance with the decision.

After various additional procedural problems, the case was reassigned. The judge of industrial claims then entered his order on the same record finding claimant 75% permanently and partially disabled, based on loss of wage earning capacity, using § 440.15(3)(u), Florida Statutes (1973).

On appeal from this order, appellant raises the following issues:

(1) Whether the judge of industrial claims erred in interpreting the Industrial Relations Commission’s order of July 1976, to mean that claimant sustained a permanent physical impairment to the body as a whole.
(2) Whether there is competent, substantial evidence in accord with logic and reason to support the judge’s finding that claimant suffered a 75% wage earning capacity loss.
(3) Whether the judge erred in holding the employer/carrier responsible for the payment of Dr. Gilbert’s treatment when the employer/carrier was providing necessary treatment, claimant failed to request additional treatment, and Dr. Gilbert’s treatment was neither remedial nor reasonable and necessary.
(4) Whether the judge erred in awarding costs and an attorney’s fee.

As to appellant’s first point, we reverse. A careful review of the record and the Industrial Relations Commission’s order of July, 1976, leads us to conclude that the Industrial Relations Commission accepted that claimant had suffered a scheduled injury in the 1974 accident and had suffered an injury to the body as a whole from that same accident. When one accident results in a scheduled injury and a separate injury to the body as a whole, the proper procedure for compensation is .that set out in Grao v. Fontainebleau Hotel, 8 FCR 354, 356, cert. denied, 300 So.2d 900 (Fla.1974):

When there are two distinct injuries, one to a scheduled member and one to the body as a whole, even if both are incurred during the same accident, they may both be compensated for separately as long as the injury to the body as a whole is not the result of the injury to the scheduled member.

Vives is entitled to compensation for a 20% permanent partial disability of his right hand, and he is entitled to compensation for the 10% permanent partial psychiatric disability.

With regard to appellant’s points 2 and 3, the case of Brevard Board of County Commissioners v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA, 1980), is controlling. There, as here, the Industrial Relations Commission held that claimant had not undertaken a sincere work search and therefore was not entitled to permanent and total • disability. The court ruled that this Industrial Relations Commission ruling was res judicata on the adequacy of the work search. We, therefore, reverse the judge’s finding of 75% loss of wage earning capacity.

Although the reasonableness or necessity of Dr. Gilbert’s treatment was raised in the Application for Review on the initial appeal of this case, it was not pursued. Appellant has waived any challenges to payment of Dr. Gilbert’s bill. See Brevard Board of County Commissioners, supra. We affirm.

With regard to point 4, the employer/carrier took the position below and on appeal that Vives was entitled only to permanent partial disability for the injury to his hand, and had been compensating Vives accordingly. Vives’ attorney stipulated benefits were being paid on this basis and acknowledged he was entitled to a fee based only on benefits obtained above and beyond those being paid. We agree. Claimant is entitled to a fee based only upon those benefits which were contested and other applicable criteria. See G & S Packing Company v. Driggers, 382 So.2d 446 (Fla. 1st DCA, 1980).

Affirmed in part, reversed in part and remanded with instructions to the judge of industrial claims to enter an order awarding claimant compensation for a 20% disability of the hand and for the 10% disability to the body as a whole.

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