author: PER CURIAM.

text:
    Joseph Lee WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 82-647.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 13, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for sexual battery, aggravated battery, and trespass. However, the trial court improperly required appellant to serve a minimum mandatory term of thirty years of his life sentence for the sexual battery. § 775.-082(3)(a), Fla.Stat. (1981). The court also failed to provide reasons for retaining jurisdiction over appellant’s sentence. The court must either relinquish its retention of jurisdiction over one-third of the sentence or state its justification for retention with individual particularity, as required by Section 947.16(3)(a), Florida Statutes (1981). Hernandez v. State, 421 So.2d 1102 (Fla. 2d DCA 1982). Finally, since appellant was adjudged indigent, the court improperly assessed him $70 in court costs and $10 to be paid to the Crimes Compensation Trust Fund. That portion of the judgment is stricken. Ortiz v. State, 420 So.2d 923 (Fla. 2d DCA Oct. 22,1982); Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981); Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

Accordingly, appellant’s convictions are affirmed, but the cause is remanded with directions to correct his judgment and sentence in accordance with this opinion.

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


source: Caselaw Access Project

author: PER CURIAM. WEINBERG, RICHARD G., Associate Judge,

license: Public Domain

text:
    COURT TOWER CORP., Appellant, v. SIMONTON RANCH TRUST, through its successor trustees, Kenneth R. McGurn and Linda McGurn, Appellees.
    No. 82-266.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 20, 1983.
    David A. Monaco, of Cobb & Cole, P.A., Daytona Beach, for appellant.
    Sandra G. Smith, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.
   PER CURIAM.

AFFIRMED.

SHARP and COWART, JJ., concur.

WEINBERG, RICHARD G., Associate Judge, dissents with opinion.

WEINBERG, RICHARD G., Associate Judge,

dissenting:

I respectfully dissent from the holding of the majority. The facts of this case are unusual and warrant comment. The real estate mortgage foreclosure, in response to original action by appellant for recission of the note and securing mortgage, was vigorously defended. Substantial issues of fact were raised in the pleadings and trial on the merits was required. The day prior to the scheduled trial, appellant’s counsel allegedly received a phone call from a female person stating that she was the trial judge’s secretary. The substance of the phone call was that the judge was ill and the case could not be tried the following day. A few minutes later a second call purportedly from the secretary of opposing counsel to appellant’s counsel allegedly confirmed that the trial was postponed. Appellant’s counsel phoned the principal witness for appellant in New York advising him that the trial was postponed and he would not be required to appear the following day for trial. Neither appellant’s principal Corporate Officer, or its counsel appeared for trial. Upon ex parte hearing, the trial court dismissed appellant’s complaint with prejudice and granted judgment of foreclosure on the counterclaim. Suffice it to say the phone calls were a hoax. Upon learning of the “hoax”, appellant’s counsel took immediate, remedial action to vacate the holdings and reset the trial. This took place the day following the scheduled “trial” date. Thereafter, lengthy, evidentiary hearings took place by the trial judge concerning the “hoax”. Various conflicts arose concerning the alleged phone calls, times of the calls, and the parties involved. The record is devoid of evidence that appellant’s Corporate Officer made or caused the phone calls to occur. Substantial judicial labor occurred in connection with a phone call to the Judge’s office by appellant’s Corporate Officer on the afternoon of the scheduled trial date inquiring about the Judge’s health and when the trial date would actually be scheduled. It was this inquiry that triggered the trial judge’s action in denying relief by concluding the “hoax” was the chicanery of appellant. It must also be noted that the trial judge fully “exonerated” appellant’s counsel from any participation in the “hoax”. At issue on this appeal is the application of Rule 1.540 Florida Rules of Civil Procedure, which provides litigants a vehicle for relief from judgments occasioned by mistake, neglect and fraud. (Rule 1.540(b), id.). By exonerating trial counsel from any participation in the fraud (hoax), in order to deny relief there must be evidence of appellant’s participation. None was shown. Evidence by appellee’s representative that appellant would do everything possible to delay the proceedings is not sufficient evidence to support the trial court’s findings. A trial on the merits would permit the court ample opportunity to consider the relative substance of each party’s claims. An evidentiary hearing on the right of recission and foreclosure more properly serves all litigants. Ironically, the amount of judicial labor expended on the effort of the parties to avoid or sustain the effects of the fraud would likely have equaled the time necessary for a hearing on the merits. Florida judicial practice favors trial on the merits and opposes summary rulings.

In order to sustain the trial court’s dismissal of appellant’s complaint and avoid timely action to set aside the finality of the judgment, exercise of judicial discretion must rest upon facts ascertainable from the record. Moss v. State Farm Mutual Automobile Ins. Co., 328 So.2d 495 (Fla. 4th DCA 1976). There are no facts ascertainable in this record by which it can be concluded with reasonable certainty that appellant’s officer perpetuated the fraud. Appellant’s argument succinctly states, “... of all the possible methods available to delay a trial, the worst possible one would be for a party to call its own lawyer and delude him into believing that the trial was canceled.” I agree with this conclusion and would reverse and remand for trial on the merits.

It follows that the attorney’s fee award should be reversed for consideration after trial. I would deny attorney’s fees to ap-pellee on this appeal.


author: SHAW, Judge.

text:
    SHELL OIL COMPANY, a foreign corporation, Appellant, v. Calvin Richard HARRISON and Cindy Baldwin Harrison, Appellees.
    Nos. AC-89, AH-170.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1982.
    Rehearing Denied Feb. 1, 1983.
    Charles W. Ehrhardt, Tallahassee, Ernest W. Welch of Welch & Munroe, P.A., Tallahassee, and Burt Ballanfant and L. Chris Butler, Litigation Dept., Houston, Tex., for appellant.
    C. Douglas Brown of Isler, Brown, Smoak, Harrison & Nabors, Panama City, for appellees.
   SHAW, Judge.

This case involves a suit by the Harrisons alleging negligence, strict liability, and breach of an implied warranty by Shell Oil Company and Kerr-McGee Chemical Corporation in manufacturing and marketing a chemical product, “Fasco Nemagon 70EC.” The jury returned a detailed special verdict for compensatory and punitive damages against each defendant. In apportioning the responsibility for injury or damage, the jury found Shell responsible for 35%, Kerr-McGee for 60%, and plaintiff Calvin Richard Harrison for 5% of the total compensatory damages of $400,000. Punitive damages of $135,000 were also assessed against each defendant. Thereafter, Shell and Kerr-McGee appealed, but Kerr-McGee later satisfied the judgment against it and withdrew its appeal.

Shell presents numerous points on appeal. We address only the dispositive issue of the duties of a bulk manufacturer or supplier of chemicals to warn manufacturing formulators, retailers, and ultimate users.

Shell was the patent owner, bulk manufacturer, and bulk supplier of a chemical product known as 1, 2-Dibromo-3-Cholopro-pane (DBCP) which was commonly used as a soil fumigant for many years. Shell marketed DBCP in bulk thirty-gallon steel containers under the trade name Nemagon. As a part of its marketing agreements, Shell furnished Kerr-McGee, and other customers, with a Specimen Label Book and a Shell Formulators Manual. In turn, Kerr-McGee reformulated Nemagon and marketed it for various applications. The particular product involved, containing 70% DBCP and 30% inert ingredients, was packaged in one-gallon glass jugs under the Kerr-McGee trade name Fasco Nemagon 70EC. The label stated that the product was manufactured by Kerr-McGee, but also stated that Nemagon was a Shell registered trademark. Kerr-McGee marketed Fasco Nemagon 70EC through retail dealers in Florida and other states. Among other applications, the product was used against nematodes, microscopic root worms which attack lawns.

During the 1960’s and 1970’s, concern arose over the possible harmful effects of manufacturing and using Nemagon and, of particular interest here, its use or storage in or around the home. In 1972, as required under federal law, Kerr-McGee submitted a proposed label for a Nemagon formulation to the Environmental Protection Agency (EPA) for approval. The EPA questioned the adequacy of the label, and a triangular exchange of letters ensued between the EPA, Kerr-McGee, and Shell concerning the use and storage of Nemagon products in or around the home. In this exchange, the EPA pointed out that products containing more than 20% Nemagon should not be used in or around the home, that containers of less than one gallon were considered to be for the home market, and that Shell placed labels warning against use or storage in or around the home on five-gallon containers of Nemagon products containing more than 20% Nemagon. Thereafter, on its thirty-gallon containers, the Shell label included the warning “not for use or storage in or around the home.”

The concern over the possible harmful effects of Nemagon deepened during the 1970’s and, on 24 August 1977, Shell informed Kerr-McGee and other Shell customers by letter of recent developments concerning Nemagon. This letter stated that Shell had suspended manufacture and distribution of Nemagon, and recommended that further sales, reformulation, and shipment of the product be suspended and that Nemagon not be used pending further information. The letter also stated that it was imperative that employees and customers be notified of this information and of Shell’s recommendations. In a press release the same week, Shell announced its previous actions and stated that it would ask its distributors to return their Nemagon stock and to assist in the return of products in the hands of dealers and growers. By followup letter dated 31 August 1977, Shell requested that Kerr-McGee notify its employees and customers as soon as possible of this new information, that Kerr-McGee return field inventories of Nemagon to Shell, and that Kerr-McGee contact its customers, including dealers and growers, to urge that they return stock on hand.

Charles Baldwin, appellees’ father and father-in-law, purchased three one-gallon glass jars of Fasco Nemagon 70EC from a Panama City lawn and garden shop in February, 1974. Baldwin used one and perhaps part of another container of this product on his lawn. The remaining two containers were stored by Baldwin at his home until approximately 31 December 1979. At that time, Baldwin moved to central Florida and gave the two containers of Fasco Nemagon 70EC to Calvin Richard Harrison, who stored the two glass containers on a top shelf in his garage. On 15 January 1980, one of the containers fell to the floor and broke, spilling the contents. The Harrisons consulted the label of the remaining container for directions, picked up the broken glass, and attempted to wash the Nemagon out of the garage with water, using a garden hose. They continued this cleanup for about four hours, in the process inhaling vapors and wetting their feet, legs, and clothing. Because of the strong smell which permeated the house, the Harrisons and their minor children left and, as of the time of the trial, had not returned.

We turn now to the issue of the duty of the bulk supplier of Nemagon (Shell) to the ultimate user of Fasco Nemagon 70EC (the Harrisons). In Zunck v. Gulf Oil Corp., 224 So.2d 386 (Fla. 1st DCA 1969), a home user of liquid petroleum gas suffered injury from a gas leak and explosion, allegedly because the gas had not been impregnated with sufficient odor to warn of the leakage. The gas manufacturer, Gulf Oil, marketed the gas through a wholesale distributor, to a retail distributor, and to the ultimate user. It was shown that the retail distributor knew that the gas was odorless when received from the wholesale distributor, but purchased odorant from the wholesale distributor and used a mechanical device to insert the odorant into the gas in order to provide the requisite warning to the consumers. On these facts, this Court upheld final summary judgments for the gas manufacturer and wholesale distributor because they had fulfilled their duty to warn and, absent a showing that they had not taken necessary precautions commensurate with the dangers reasonably anticipated under the circumstances, they were not responsible for warning the ultimate users of the gas. On the facts and circumstances here, we find Zunck to be dispositive and hold that the trial court erred in not directing a verdict for Shell prior to submission to the jury. We note also that the error in failing to direct a verdict was compounded by the court’s refusal to give defendant Shell’s requested jury instruction on the duty of a manufacturer or bulk supplier to a manufacturing formulator, to a retailer, and to an ultimate user. Without these instructions on the substantive law, the jury was ill-equipped to determine the duties and responsibilities of Shell to the Harrisons.

Appellees urge on appeal that there was evidence showing that Shell had concealed from, or failed to reveal to, Kerr-McGee information concerning the hazards of Nemagon, its proper use and storage, and precautions to be taken should spillage occur. The facts refute this argument. There was testimony from a responsible Kerr-McGee official that Kerr-McGee knew of the restrictions on the use or storage of Nemagon products in or around the home as of 1972, two years before the product containers in question were bought by Baldwin. There was also evidence of the recall of Nemagon products issued by Shell to Kerr-McGee in 1977, two years before the spill occurred in the Harrisons’ home. Under these circumstances, it is clear that Shell took the necessary precautions commensurate with the dangers reasonably anticipated.

Appellees also urge that Shell, the manufacturer or distributor of an inherently dangerous commodity, had a duty to the ultimate foreseeable user to give fair and adequate warning of its dangerous potentialities, including any necessary respirators or protective clothing needed. See Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Lollie v. General Motors Corp., 407 So.2d 613 (Fla. 1st DCA 1981); and Edwards v. California Chemical Co., 245 So.2d 259 (Fla. 4th DCA 1971). Each of these cases is factually distinguishable from the present case. In Tampa Drug Co., the defendant was manufacturer, distributor, and, so far as can be gathered from the facts given, the retailer of the inherently dangerous commodity. Further, the label on the commodity, the adequacy of which was at issue, was also prepared by the defendant. In Lollie, there was no inherently dangerous instrumentality, and defendant General Motors was both manufacturer and distributor of the instrumentality. In Edwards, the defendant manufacturer packaged and labeled the inherently dangerous commodity and marketed it through retailers in the original package with the manufacturer’s label attached. The court held that the adequacy of the manufacturer’s label presented a question of fact for the jury which precluded summary judgment. All of these cases are factually dissimilar to the present case and none present the legal issue involved here.

Under the facts as detailed above, did Shell, as the manufacturer and bulk supplier of a dangeorus toxic component, have a nondelegable duty to warn ultimate users of the hazards of commodities containing the toxic component when the commodities were formulated, packaged, labeled, and distributed by others? We think not. The federal regulatory system provides for EPA approval and oversight of the labeling and packaging of chemical formulations prepared for sale to the public. These labeling and packaging requirements necessarily differ depending upon the particular formulation and, thus, place the responsibility on the formulator for providing adequate warning to the public and for obtaining EPA approval. Shell, as the manufacturer or supplier selling in bulk to one other than an ultimate consumer, took the necessary precautions commensurate with the dangers reasonably anticipated under the circumstances.

REVERSED and REMANDED with directions to enter a directed verdict for Shell Oil Company.

SHIVERS and WIGGINTON, JJ., concur.


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

text:
    Johnny ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2280.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 17, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Roberts appeals his conviction of second degree murder. The only issue which merits discussion is Roberts’s argument that the court erred in denying his motion for acquittal made at the close of the state’s case.

The decedent, Jackie Robinson, dated Teresa Taylor for several years. They separated and she began dating Roberts. A few days prior to the killing, the decedent assaulted Taylor. When Roberts intervened, Robinson threatened both Taylor and Roberts with his gun. Roberts reported the incident to the police. Subsequently, in discussing the incident with the decedent’s brother Charles, Roberts said, “If I didn’t know your brother, Otis, that I would kill your brother, Jackie.” Later, Roberts indicated to several people that he wanted to “get Robinson back.” At a bar on the night in question, the decedent threatened a man named Levon Smith with his gun. Smith later met Roberts outside the bar. They left and went to Taylor’s apartment and later returned to the bar. After they returned, the decedent was standing outside on the sidewalk. Roberts came out of the front door of the bar and walked directly toward the decedent who turned and reached for his gun. Roberts grabbed Robinson’s hand that was reaching toward his belt where the gun supposedly was and with his other hand pulled out his own gun and shot four or five times. Robinson, because he was restrained by Roberts, never freed his gun from his belt or pants, but later the gun was found on the sidewalk next to his right hand. Although the state charged Roberts with first degree murder, the jury found him guilty of second degree murder.

In order to obtain a conviction for second degree murder, the state must prove that the defendant killed the decedent with a depraved mind regardless of human life. § 782.04(2), Fla.Stat. (1979). Depravity of mind means malice in the sense of ill will, hatred, spite or evil intent. Ramsey v. State, 114 Fla. 766,154 So. 855 (1934). Roberts argues that the act which resulted in Robinson’s death was not a product of a depraved mind, but rather occurred because he overreacted and used excessive force in the face of the decedent’s threatening actions, and thus he was guilty of no more than manslaughter. The crime of manslaughter encompasses those situations in which the defendant uses excessive force to defend himself. Pearce v. State, 154 Fla. 656, 18 So.2d 754 (1944); Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978).

Viewed in the light most favorable to the state, the evidence supports the jury’s verdict of second degree murder. The evidence justifies the jury’s rejection of Roberts’s self defense claim. Though it could have found that he used excessive force in seeking to prevent Robinson from shooting him, it did not. Appellant stated to the deceased’s brother that, “I would kill your brother, Jackie” if he had not known the other brothers. He also stated to others that he wanted to “get Robinson back.” Those statements, when considered with the fact that appellant fired his gun four or five times after he had apparently succeeded in restraining the decedent, were sufficient to survive a motion for acquittal of second degree murder. The state’s case having survived a motion for acquittal, the jury could have and apparently did find that appellant used excessive force and thus acted out of a sense of ill will, hatred, spite or evil intent and was guilty of second degree murder. Ramsey v. State.

We, therefore, affirm. However, we note that in the original sentence the court retained jurisdiction over one third of Roberts’s sentence without stating with particularity its justification for doing so. On resentencing, if the court wishes to retain jurisdiction over a portion of Roberts’s sentence, it must state with particularity its justification for doing so as required by section 947.16(3)(a), Florida Statutes (1979).

SCHEB, J., concurs.

GRIMES, A.C.J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

I believe that the state failed to establish that Roberts killed the deceased with a depraved mind regardless of human life, an essential element of second degree murder. § 782.04(2), Fla.Stat. (1979). Viewed in the light most favorable to the state, the evidence still shows that the decedent reached for his weapon first. There is no evidence that Roberts was threatening the decedent as he walked toward him. Roberts produced a gun only after the decedent made the first move. Admittedly, the jury was entitled to reject Robert’s claim of self defense. However, where one kills another through the use of excessive force in defending himself, the appropriate charge is manslaughter. Pearce v. State; Pierce v. State; Martinez v. State.


text:
    Ray Whitney FISH, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-835, 82-836.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 13, 1983.
    Elizabeth Anne Goodale, Largo, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Ray Whitney Fish appeals from county court judgments and sentences for violation of chapter 76-482, Laws of Florida, and from the orders upholding the validity of that chapter. Upon consideration of the record, briefs and argument of counsel, we hold that this court lacks jurisdiction to consider the appeals. See article V, sections 3(b), 4(b)(1), 5(b), Florida Constitution; sections 26.012(1), 924.06(3), Florida Statutes (1981); Florida Rule of Appellate Procedure 9.140(b)(2).

The appeals are, therefore, DISMISSED.

SCHEB, A.C.J., and RYDER and SCHOONOVER, JJ., concur.


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

text:
    Walter J. KANE, Appellant, v. STATE of Florida, Appellee.
    No. 82-289.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Motion for Certification of Question of Great Public Importance Denied Jan. 26, 1983.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY, J., concurs.

LETTS, C.J., specially concurs with opinion.

ANSTEAD, J., dissents with opinion.

LETTS, Chief Judge,

specially concurring:

This is another one of those extraordinary cases involving lewd assault upon young children, in this instance two brothers. We commented in Espey v. State, 407 So.2d 300, 302 (Fla. 4th DCA 1981) about how difficult it is to prove deviant sex acts upon minors, when the adult denies them, and reiterated that the testimony about collateral acts must be relevant to intent and a common scheme or plan. In the instant case, the victim and his brother were both approached in the defendant’s home and were both asked to lie on their stomachs and the defendant simulated sexual intercourse from behind while he and the boys were clothed. In my view, these acts have the kind of “special character ... so unusual as to point to the defendant.” Drake v. State, 400 So.2d 1217,1219 (Fla.1982). Accordingly, the collateral evidence is indeed relevant under the existing case law laid down by our Supreme Court in Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

This is not to say that I am happy with the Williams Rule exception. Indeed, I expressed my discontent with it in Espey. Nonetheless, it is the law and I would point out that the Third District followed it in the Sias case cited by Judge Anstead.

ANSTEAD, Judge,

dissenting:

Applying the reasoning of the Supreme Court in Coler v. State, 418 So.2d 238 (Fla.1982), and the Third District in Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982), I would hold that the trial court erred in admitting evidence of prior acts of misconduct by the appellant and reverse for a new trial. In addition, it is clear that appellant’s past misconduct, rather than the episode for which he was tried, became the focus of the trial, and the prejudicial impact of such evidence far outweighed any probative value as to the pending charge. Straight v. State, 397 So.2d 903 (Fla.1981). In short, the appellant was tried for his past misconduct rather than the offense charged.


author: LARRY G. SMITH, Judge.

text:
    GUNN’S QUALITY GLASS & MIRRORS, INC., and South Carolina Insurance Company, Appellants, v. James STRODE, Appellee.
    No. ZZ-495.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Feb. 1, 1983.

      Marjorie D. Gadarian, Jones & Foster, West Palm Beach, for appellants.
    Harry Goodmark, Goodmark & Good-mark, West Palm Beach, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal an order awarding attorney’s fees under Section 440.34(2)(a), Florida Statutes (1979). They assert that since the claimant filed a claim for disability benefits at the same time he filed his claim for medical benefits, his claim was not one for “medical benefits only,” and an attorney’s fee is not due. We agree and reverse.

Claimant sustained a compensable injury to his wrist on August 20, 1979. On September 5, 1979 the claimant’s attorney executed and mailed to the Division a claim for “temporary total disability and/or temporary partial disability from the date of the accident to date of maximum medical improvement; permanent disability; payment of medical bills, further medical care.” The claimant continued working for two weeks following his injury, and it is undisputed that his actual disability did not begin until September 6, 1979, the day after the claim was mailed. The employer/carrier began payment of compensation on September 20, 1979 backdating the benefits to September 6, 1979. Next, on November 1, claimant requested authorization for an operation on his wrist. However, the employer/carrier denied authorization relying on Doctor The-baut’s opinion that the requested surgery was not causally related to the employment injury. A hearing was held on claimant’s request, and was followed by an order finding that the claimant was entitled to the operation.

A second hearing was held on claimant’s request for attorney’s fees and costs. The deputy commissioner determined, and we agree, that there was no evidence establishing bad faith on the part of the employer/carrier within the framework of Section 440.34(2)(b), Florida Statutes (1979). Further, he correctly determined that fees were not awardable under Section 440.34(2)(c), Florida Statutes (1979), as claimant was paid temporary total disability benefits and so it cannot be said the employer/carrier denied that an injury occurred for which compensation benefits are payable. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). However, with respect to the award of a fee under Section 440.34(2)(a), the deputy stated as follows:

6. The remaining question is whether the claimant is entitled to have his attorney’s fee paid by the employer/carrier under 440.34(2)(a), the so called “medical benefits only” section. I find that the claimant successfully asserted a claim for medical benefits, to wit, an operation by Dr. D. Barry Lotman.
The remaining issue deals with whether the claimant “has not filed or is not entitled to file at such time, a claim for disability . . . . ” On or about September 5, 1979, the claimant filed a claim for benefits which included temporary total disability and/or temporary partial disability. Ostensibly, the claimant’s disability began on September 6, 1979. Accordingly, no benefits were past due at the time the claim form was completed. Additionally, the claimant did not use the newly revised claim for [sic], tailored to the requirements of the August 1, 1979 Act.
Finally, the employer/carrier’s timely acceptance of temporary disability benefits vitiated any pending claim for disability benefits.
At the time of the hearing in question, there were no litigable issues of disability. Realistically, the only issue in controversy was medical. My interpretation of sec. 440.34(2)(a) leads me to conclude that an attorney’s fee must be allowed against the employer/carrier under the circumstances of this case.

We respectfully disagree with the conclusions of the deputy commissioner. We do not favor a technical and mechanistic approach to filing requirements. Florida Erection Services v. McDonald, 395 So.2d 203 (Fla.App.1981); Special Disability Trust Fund v. Geophysical Services, Inc., 414 So.2d 644 (Fla. 1st DCA 1982). We will treat the claim as properly filed, even though it was completed and mailed before the claimant’s disability began. However, if purely technical requirements are considered, a claim is not “filed” until it reaches the division. Sections 440.19, 440.25, Florida Statutes (1981); Rule 2(g), Florida Workers’ Compensation Rules of Procedure. Claimant’s attorney testified that the claim was “filed” on September 7, 1979, and we find no other evidence of the filing date in the record. Thus, we must consider the claim as timely filed under Section 440.-25(1).

We base our determination that entitlement to attorney’s fees has not been demonstrated in this case on more fundamental considerations. Our interpretation of the statute, considered in the light of its recent legislative history, convinces us that the claim in this case was not one “for medical benefits only.” Until 1978, a successful claimant could recover 100% of his attorney’s fees. Then the legislature enacted Section 440.34(1), Florida Statutes (Supp. 1978), requiring the claimant to pay 25% of the fees on claims for benefits other than medical benefits, with the remaining 75% still paid by the carrier or employer. In the hopes of reducing the large amount of workers’ compensation litigation, the 1979 Legislature addressed the issue of attorney’s fees once more in its major overhaul of the workers’ compensation law. The 1979 law, Section 440.34(2), requires the claimant to pay 100% of his attorney’s fees except for those limited situations set forth in paragraphs (a) through (c), and evidences the Legislature’s intention to severely curtail those circumstances in which the employer/carrier shall be responsible for the claimant’s attorney’s fees. Although we find Section 440.34(2)(a) somewhat ambiguous, we are unable to read the statute as expansively as did the deputy commissioner so as to permit an award of fees in this instance. The phrase “has not filed or is not entitled to file at such time, a claim for disability ...” appears to have been added by the Legislature to make it clear that the employer/carrier is responsible for attorneys fees when there is no matter in controversy when the claim is filed other than medical benefits. The legislative history of Section 440.34(2)(a) buttresses this conclusion. Further, this interpretation is consistent with past interpretations by this court, Exceptional Children’s Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130, 1131 (Fla. 1st DCA 1982); and Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982). The special circumstances present in Landers Construction v. Delauder, 417 So.2d 989 (Fla. 1st DCA 1982), are not present here.

Accordingly, the order of the deputy commissioner is REVERSED.

MILLS and ERVIN, JJ., concur.

      . Section 440.34(2)(a) provides, in part:
      (2) ... A claimant shall be responsible for the payment of his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer:
      (a) Against whom he successfully asserts a claim for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident; . ..

      . We regard the “claim,” for Section 440.-34(2)(a) purposes, as the one filed with the division on September 7, 1979, which included compensation as well as medical benefits. Thus, the November 1, 1979 request for an operation submitted to the E/C, but not filed as a claim in accordance with Section 440.-19(2)(d), did not qualify as a claim. The filing of a claim is no mere formality in this context, because by filing a claim, the division is enabled to conduct its investigation and attempt to resolve the dispute without resort to a hearing. Section 440.19(1). By failing to file a separate claim for specific medical benefits alone the claimant thwarted an important self-executing feature of the 1979 Workers’ Compensation Law.

      . Sadowski, et al., “The 1979 Florida Workers’ Compensation Reform: Back to Basics,” 7 Fla. St.L.Rev. 641, 670-671.

      . Although we have been unable to document the specific reasoning employed by the Legislature with respect to Section 440.34(2)(a) (now Section 440.34(3)(a), Florida Statutes (1981)), we can readily appreciate reasons why recovery of attorney’s fees would be provided for in the case of medical benefits, but not for compensation benefits. One reason is that compensation benefits provide, at least to some extent, a fund from which such fees might be paid, while medical benefits result only in payments to third party medical care providers.

      . “The new law requires the claimant to pay 100% of his attorney’s fees on all claims for benefits except if the claim is for medical benefits only and does not include a claim for disability, permanent impairment, or wage Joss benefits .... ” Sadowski, supra note 3.

      . The 1979 Senate passed CS/SB 188 which provided that the claimant would pay 100% of his attorney’s fees unless the carrier acted in bad faith or completely denied coverage on a compensable claim. 1979 Senate Journal 71. CS/SB 188 traveled to the House where it was substantially amended. The House version provided that a claimant would be entitled to an attorney’s fee from a carrier against whom he successfully asserts a claim for medical benefits. In ail other combination of claims the claimant was to be responsible for paying his own attorney’s fees. 1979 House Journal 210. The House and Senate then adopted the following language, amending Section 440.34 to read in part:
      (2) If the claimant should prevail in any proceedings before a deputy commissioner, commission, or court, there shall be taxed against the employer the reasonable costs of such proceedings, not to include the claimant’s attorney’s fees. A claimant shall be responsible for the payment of his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer:
      (a) Against whom he successfully asserts a claim for medical benefits only which does not include a claim for disability, permanent impairment, or wage-loss benefits; or

      (b) In cases where the deputy commissioner concludes by the issuance of an order that a carrier has acted in bad faith with regard to handling an injured worker’s claim and the injured worker has suffered economic loss. For the purposes of this paragraph, “bad faith” means conduct by the carrier in the handling of a claim which amounts to fraud, malice, oppression or willful, wanton or reckless disregard for the rights of the claimant. Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding; or
      (c) In a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of coverage.
      In the situations set forth in paragraph (b) the payment of such attorney’s fees shall not be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing, (emphasis supplied)
      1979 Senate Journal 296, 1979 House Journal 351, Ch. 79-40 § 27, 1979 Fla.Laws 215. However, in SB 669, the 1979 legislature again addressed the newly revised workers’ compensation law. SB 669 amended Section 440.34 (see above) still further by adding the language “if the claimant has not filed or is not entitled to file at such time” apparently to make it “perfectly clear,” according to Sadowski, that the employer/carrier would have to pay 100% of the attorney’s fees “on medical benefits only.” Sadowski at 671. As changed by SB 669, which passed both the House and Senate, Section 440.34(2)(a) was amended to read:
      (2) ... A claimant shall be responsible for the payment of his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer:
      (a) Against whom he successfully asserts a claim for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident; or
      1979 Senate Journal 804, 1979 House Journal 1101, Ch. 79-312 § 15, 1979 Fla.Laws 1645.

      . We caution, however, that our ruling does not preclude an award of attorney’s fees for obtaining medical benefits only under other circumstances not present here, such as, for example, where a claim specifically limited to medical benefits is filed subsequent to the filing of a claim for other benefits which has been withdrawn, or where such other benefits claimed have been or are being paid by the E/C either by voluntary acceptance or pursuant to adjudication. Although we will not undertake an analysis of the statute and its application to cases not before us, we agree with the premise implicit in the order of the deputy commissioner here (without agreeing with his conclusion), that where the claimant is awarded medical benefits only, unconnected with and in isolation from other claims, attorney’s fees may well be awardable under the statute. The deputy commissioner construed the statutory phrase “at such time” as referring to the time of the hearing, whereas we adopt the more literal (we think) interpretation that the phrase refers to the time when the claim is filed.


text:
    WORLD BANK (a proposed state bank) and the Organizers of the Bank, Appellants, v. Gerald LEWIS, Comptroller of the State of Florida, et al., Appellees. AMERICAN INTERNATIONAL BANK (a proposed state bank) and the Organizers of the Bank, Petitioners, v. Gerald LEWIS, Comptroller of the State of Florida, et al., Respondents.
    Nos. AD-473, AL-375.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Sanford L. Bohrer and Raul A. Arencibia of Paul & Thomson, and James D. Whise-nand of Hornsby & Whisenand, Miami, for appellants.
    Elsa Lopez Whitehurst, Michael Basile, and Franklin J. Wollett, Assts. to the General Counsel, Office of the Comptroller, Tallahassee, for appellees.
   PER CURIAM.

Appellants, a proposed bank and its organizers, appeal a March 26, 1982, order of the Department of Banking and Finance (Department) entered subsequent to this Court’s opinion of November 17, 1981, World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981).

The events surrounding appellants’ application are described in our earlier opinion. In essence, appellants, among whom are foreign nationals, applied for a license to organize a bank on July 24, 1980. Section 120.60(4)(c), Florida Statutes (1979), is pertinent and reads as follows:

(c) Notwithstanding subsection (2), every application for license for a new bank, new trust company, new credit union, or new savings and loan association, and every application for acquisition of majority control of a bank, trust company, or savings and loan association involving a foreign national, shall be approved or denied within 180 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. Any application for such a license or for acquisition of such control not approved or denied within the 180-day period or within 30 days after conclusion of a public hearing on the application, whichever is the latest, shall be deemed approved subject to the satisfactory completion of conditions required by statute as a prerequisite to license and approval of insurance of accounts for a new bank, a new savings and loan association, or a new credit union by the appropriate insurer.

Our November 17 World Bank opinion held that, as a result of the Department’s inaction, the pending application was deemed approved by operation of the statute; the sufficiency of evidence supplied by the applicants was not a consideration. The practical effect of the opinion was to direct the Comptroller to approve World Bank’s application as it existed at the end of the 180-day period.

Our opinion notwithstanding, the Department issued its March 26 order placing certain conditions upon approval of the application, the most objectionable of which was the requirement that the assets must be increased from the proposed two million dollars to over eight million dollars. We do not question the good faith of the Department in seeking to impose such a requirement, but this is now a moot issue; Departmental discretion in the matter is foreclosed. The application having been approved by default, the imposition of such a condition subsequent to default approval is impermissible. To hold otherwise would eviscerate the 180-day requirement of section 120.60(4)(c).

We recognize that there are cases holding that an agency’s violation of mandatory statutory timeliness provisions does not necessarily require a reversal of the agency action. They are not analogous to the present case in that the statutes construed in those cases require action on the part of an agency within a certain period of time, but do not specify the consequences of a violation. In the statute we construe, the legislature has made its intent as to the consequence of a violation abundantly clear: the application “shall be deemed approved .... ” Approval by default has the effect of placing the applicants in the same position they would have enjoyed had the Department granted approval on the merits within the 180-day period.

In support of its March 17 order requiring increased capitalization, the Department argues that international banking is an area of inherently higher risk. The proposed bank would have to compete with internationally expert and highly capitalized financial institutions, and there is an excessively competitive situation for financial institutions generally in appellants’ primary service area. The Department may be correct in this assessment. Nevertheless, the time for taking action based upon these apprehensions is during the 180-day period specified in section 120.60(4)(c). Where the Department fails to take such action, as in this instance, the application is deemed approved. Our November 17 opinion should have made it clear that the approval is of the pending application. The Department may not technically approve an application and subsequently place insurmountable obstacles before the applicants which would keep the technical approval from having any practical relevance.

The order of the Comptroller dated March 26, 1982, is reversed insofar as it attempts to increase the applicants’ capitalization requirement beyond that proposed in the application and insofar as it attempts to change the name of the proposed bank from American International Bank to American Guaranty Bank. The application is deemed approved, and the applicants are now subject to the usual statutory requirements which are imposed between application approval and granting of a charter.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

SHAW, THOMPSON and WIGGINTON, JJ., concur.

      . Appellants also filed a motion to enforce the mandate of World Bank. The result appellants seek by the two actions is the same, and we dispose of the issue under the posture of the appeal, the more appropriate procedure.

      . The effect of the order was to give conditional approval of the application. It granted authority to organize and operate a bank subject to certain conditions, only some of which are proper in that they are prospective and applicable to all application approvals. The conditions, in their entirety, are as follows:
      (1) Approval of insurance deposits by the Federal Deposit Insurance Corporation or approval for membership in the Federal Reserve System.
      (2) The Board of Directors shall be composed of those members proposed in the application, plus, at least one director who shall not be the chief executive officer, who has previous direct banking experience. Any changes in the composition of the Board of Directors shall be submitted to the Department for approval.
      (3) The Chief Executive Officer and Operations Officer must be submitted to the Department for approval, so that they can be approved at least 60 days prior to the bank’s opening.
      (4) The initial capital shall not be less than $8.6 million dollars to be allocated according to the Applicant’s discretion, and where such allocation will be approved by the Department.
      (5) Investment in fixed assets shall meet the statutory requirements of the Department of Banking and Finance. All leases and leasehold improvements shall be submitted to the Department of Banking and Finance for review prior to their execution or purchase.
      (6) The Articles of Incorporation shall be filed with the Secretary of State within six months after approval by the Board of Governors of the Federal Reserve System or approval by the Federal Deposit Insurance Corporation.
      (7) The bank shall open within six months after filing of the Articles of Incorporation with the Secretary of State. This requirement may be subject to one six-month extension upon written request to this office.
      (8) At least 21 days prior to its intended opening date the banking corporation shall file with the Department a statement complying with Section 658.25(2), Florida Statutes.
      (9) In light of the Mandate by the First District Court of Appeal to approve the application, the Department feels that American Guaranty Bank is the least confusing of the Appellant’s three proposed names. The proposed bank shall use the name American Guaranty Bank.
      (10) Until the conditions herein specified and other reasonable requirements of the Department of Banking and Finance are met, or if any interim development is deemed by the Comptroller to warrant such action, the Comptroller shall have the right to alter, suspend or withdraw this ORDER.

      . See G & B of Jacksonville, Inc. v. State, 362 So.2d 951 (Fla. 1st DCA 1978) (consequence of a violation of requirement of section 120.59, Florida Statutes, that the final order in a proceeding which affects substantial interests shall be rendered within ninety days after a recommended order is submitted to the agency and mailed to all parties, should be measured by the provisions of section 120.68(8) and will depend upon whether the fairness of the proceedings or the correctness of the action taken is found to have been impaired); Fla. Dep’t of Transp. v. Foster and Kleiser, Inc., 365 So.2d 224 (Fla. 1st DCA 1978) (violation of requirement of section 120.54(1 l)(b), Florida Statutes, that a proposed rule must be filed with the Department of State within forty-five days after publication in the Florida Administrative Weekly, measured by section 120.68(8), did not reveal that the fairness of the proceedings or the correctness of the action taken were impaired by the delay. Reversed because the appellee was not given an opportunity to demonstrate prejudice); contra Hyman v. State, 399 So.2d 1098 (Fla. 3d DCA 1981) (violation of section 120.59 mandatory ninety-day requirement “per se renders unenforceable an agency order in a proceeding in which the agency is the protagonist ... . ” Opinion found the issue controlled by section 120.68(9) rather than section 120.68(8)); Cour-telis Co. v. Dep’t of Transp., 415 So.2d 826 (Fla. 3d DCA 1982) (violation of ninety-day requirement of section 120.59(l)(b) treated as in Hy-man).


text:
    HAMMERSMITH, INC., and Kent Insurance Company, Appellants, v. Madeline ZANFARDINO and Fred Zanfardino, Deceased Employee, Appellees.
    No. AL-401.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1982.
    Rehearing Denied Jan. 31, 1983.
    Kathleen V. McCarthy, Hialeah, for appellants.
    Michael R. Friend of Maguire & Friend, P.A., Coral Gables, for appellees.
   SHAW, Judge.

The deceased claimant, a shipping clerk at employer’s wholesale grocery warehouse, was required as a condition of employment to take a polygraph (lie detector) examination. During an investigation of pilferage, he took and failed two such tests. A few minutes after taking a third test, he complained of numbness in his leg. He was ministered to by a rescue squad, but developed respiratory problems and was transported to a hospital where he was pronounced dead on arrival. The cause of death. was a dissecting aneurysm of the aorta (ruptured aorta). The deputy found that being wired to the polygraph machine was an identifiable effort, that there was physical reaction to the polygraph examinations as exhibited by the change in blood pressure and respiration, that the taking of the polygraph examination was an unusual strain or overexertion not routine to the type of work performed, that this unusual exertion precipitated the dissecting aneurysm, and that the deceased suffered a com-pensable accident. We disagree and reverse.

We note in passing that the pertinent evidence was received by deposition and that our vantage point in interpreting the depositions is not inferior to that of the deputy. See Kelly v. Florida Atlantic University, 413 So.2d 833 (Fla. 1st DCA 1982), and Dukes v. Dukes, 346 So.2d 544 (Fla. 1st DCA 1976).

The doctor who performed the autopsy testified that the deceased had a preexisting disease, arteriosclerosis of the aorta, which predisposed him to dissecting aneurysms and that there was no other evidence of heart disease. He opined that polygraph tests are emotionally stressful and, based on the close proximity of the test to the death, he believed the dissection of the aorta was related to the polygraph examination. Two expert polygraph examiners testified that polygraph tests are emotionally or psychologically stressful but are not physically stressful; the tests are designed to measure physiological changes in the subject’s body as manifested by changes in blood pressure, in breathing, and in galvanic electricity running through the body.

In Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962), the court adopted the following rule for heart eases:

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

Id. at 588-589. In Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978), the Florida Supreme Court extended the Victor Wine rule to other internal failures of the cardiovascular system, holding that “before a ruptured aneurysm can qualify as an accident arising out of employment, the rupture must be shown to have been caused by an unusual strain or overexertion by the claimant resulting from a specifically identifiable effort by him not routine to the type of work he is accustomed to performing.” Id. at 1342. In Silvers v. The Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla.1981) the court held that for a heart injury to be compensable, “the ‘indentifiable effort’ associated with the onset of a heart attack must be job-related and must stem in part from some non-routine physical exertion.” Id. at 441.

In his findings the deputy has departed from the evidence and the law. While being wired for and taking a polygraph test might be characterized as non-routine, the evidence clearly showed that there was nothing in the test which could be described as a physical overexertion. The polygraph test as conducted was essentially passive; the only physical activity required was breathing. A change in blood pressure or respiration rate from emotional stress is not physical overexertion, and to accept the deputy’s findings would be tantamount to abandoning the rule of Victor Wine and its progeny that there be an unusual physical exertion. Emotional strain unaccompanied by unusual physical strain or overexertion is an insufficient basis upon which to predicate compensability. As the court said in Mosca at 1342:

We have had a number of “heart” cases in which we determined what was or what was not an unusual and pon-routine strain or exertion within the definition of Victor Wine. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity; in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

REVERSED.

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


author: DANAHY, Judge.

text:
    Wallace McClure KELLY, a/k/a Scott A. Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 81-2563.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.
    Rehearing Denied Jan. 19, 1983.

      Milton M. Ferrell, Jr., and Lawrence M. Malman of Ferrell & Ferrell, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant appeals his convictions for conspiracy to traffic in cannabis in excess of 100 pounds and trafficking in cannabis in excess of 10,000 pounds. He asserts that he was denied his constitutional right to a full cross-examination of the state’s star witness, Paul Scott. We agree and reverse.

The charges against the defendant stem from the arrival of a boat loaded with a large quantity of marijuana at the Gaspar-illa Marina in Placida, Florida, in the early morning hours of June 3, 1981. Paul Scott was an employee of the Gasparilla Marina and resided on the marina premises. On the night in question, he observed a black, 4-wheel-drive truck driving on the public road near the marina in what he believed to be a suspicious manner. He also observed other vehicles in the area and observed a large boat pull into the marina from the intercoastal waterway. Scott went to a nearby place of business and asked a guard to notify the Sheriff’s Department.

At trial, Scott identified the defendant as being the driver of the black truck. On cross-examination, he admitted that he failed to give any reference to or description of the defendant in a statement given on June 8 to the Sheriff’s Department and that his first identification of the defendant was made about a month later at a photo lineup. He also admitted that when his deposition was taken in a related case he had stated that the driver of the black truck could have been a female and that he could not identify the driver.

Prior to the trial, Scott was arrested in Miami for soliciting a bribe and carrying a concealed firearm. He allegedly had made a series of phone calls to solicit a bribe from a defense attorney for a co-defendant and offered to change his testimony for the sum of $120,000.

At trial, the state elicited the following testimony from Scott on direct examination:

Q. ... were you arrested in Miami?
A. Yes.
Q. What were you arrested for?
A. Soliciting a bribe.
Q. What is the actual charge, do you know?
A. No.
Q. Soliciting a bribe?
A. Yes.
Q. Were you offering to change your testimony for a sum of money?
A. No.
Q. What was the charge?
A. I don’t know the charge.
Q. But you were arrested down in Miami for soliciting a bribe?
A. Yes.

On cross-examination by counsel for the defendant, the following took place:

Q. Mr. Scott, let’s talk a little bit about the arrest that Mr. Berry inquired into. You were arrested for an infraction related to this case down in Miami, I believe, wasn’t it.
A. No.
Q. Where was it?
A. Not this case.
Q. In relation to this incident?
A. Yes.
Q. Okay. What were you arrested for?
A. Soliciting a bribe.
Q. Soliciting a bribe?
A. Yes.
Q. Anything else?
A. Carrying a concealed firearm.
Q. What did you do to lead up to that arrest?
A. May I speak to the Judge?
Q. You tell this Jury what you did to lead up to that arrest.
MR. BERRY: Your Honor, I will object at this point. I would ask the Jury be taken out.

The prosecutor then stated the ground for his objection to be that “Mr. Scott needs to be advised of his constitutional rights under the fifth amendment of the Constitution on self-incrimination.” The trial judge thereupon declared a recess and brought in the public defender to advise Scott of his constitutional rights. The public defender advised Scott to invoke his fifth amendment privilege against self-incrimination in regard to his arrest in Miami as to any facts other than the facts of public record. When defense counsel resumed cross-examination of Scott, Scott invoked his fifth amendment privilege against self-incrimination and declined to answer any questions concerning the details of the charge in Miami against him for soliciting a bribe. Asserting a, denial of the defendant’s rights under the sixth amendment, defense counsel moved to strike Scott’s testimony. That motion was denied.

The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right, among others, to be confronted with the witnesses against him. This confrontation clause of the sixth amendment is applicable to the states through the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Article I, section 16, of the Florida Constitution also contains a confrontation clause affording the accused the right “to confront at trial adverse witnesses.”

A primary interest secured by the confrontation clause is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The right of cross-examination, of course, includes the right to examine a witness as to matters affecting his credibility, including a possible motive for testifying. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court said:

A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” .... We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [Citations omitted.]

In this case, Scott was a star witness for the prosecution because his testimony was essential to the state’s case. Only Scott identified the defendant as being at the scene on the night that the boat loaded with marijuana arrived at the Gas-parilla Marina. Under such circumstances, denial of the right to explore on cross-examination possible bases for impeaching the credibility of the witness amounts to a denial of rights under the sixth amendment. Greene v. Wainwright, 634 F.2d 272 (5th Cir.1981); Beaudine v. United States, 368 F.2d 417 (5th Cir.1966); United States v. Cardillo, 316 F.2d 606 (2d Cir.1963); Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978). If a defendant’s right to cross-examination on such matters is thwarted, the remedy is to strike the witness’ testimony. United States v. Cardillo.

Here, Scott testified on direct examination that he had been arrested in Miami on a charge of soliciting a bribe. When asked whether he had offered to change his testimony for money, he answered in the negative. Clearly, the defendant’s sixth amendment rights were denied when he was foreclosed from inquiring into these matters on cross-examination of Scott. In a case involving the alleged solicitation of a bribe by a star witness for the prosecution, the United States Court of Appeals, Fifth Circuit, held that under such circumstances it was essential in the truth-finding function of the trial that the witness’ motivations be explored fully and with vigor. Beaudine v. United States. The court pointed out that it is almost always the case when cross-examination directed to its main objective — destruction of credibility — is unduly restricted, the record, of necessity, does not and cannot reflect what would have been developed; appropriate cross-examination could only be accomplished by an adroit, penetrating, relentless cross-examination searching deeply into the motivation of the witness.

We reject the state’s argument that the matter of Scott’s alleged solicitation of a bribe was fully presented to the jury through other witnesses and the questions on direct and cross-examination which Scott actually answered. The cross-examination of Scott was abruptly curtailed, and no other evidence could substitute for a full cross-examination of Scott on this issue.

In view of our disposition, it is not necessary that we consider other points raised by the defendant.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: GRIMES, Judge.

text:
    G. William LAZENBY, Appellant, v. Frederick BEISEL and Elizabeth Beisel, his wife, Appellees.
    No. 82-205.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1982.
    Rehearing Denied Jan. 19, 1983.

      Thomas Saieva of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for appellant.
    Sam Daniels of Daniels & Hicks, Miami, and Anderson & Moss, P.A., Miami, for appellees.
   GRIMES, Judge.

This appeal involves a consideration of the proper standard for proving causation in medical malpractice cases.

Frederick Beisel suffered from cataracts in both eyes. He consulted Dr. William Lazenby, an ophthalmologist, who decided to place a lens implant in the right eye. During the surgery, Dr. Lazenby gave Mr. Beisel a retrobulbar injection behind the eye. Within thirty seconds of the injection, the doctor noticed that the eyelids were beginning to bulge, a sign of retrobulbar hemorrhage. Dr. Lazenby stopped the operation and treated the hemorrhage by placing ice packs around the eye. He later performed a second successful operation, but Mr. Beisel can only see light from this eye.

Retrobulbar hemorrhages generally heal without treatment and cause no damage. However, occasionally the elevated pressure inside the eye produces a loss of vision, and there was general agreement that this occurred in Mr. Beisel’s case. No one suggested that hemorrhage occurred through any fault of Dr. Lazenby. However, Mr. Beisel’s expert witness, Dr. Soloway, testified that in the treatment of the hemorrhage, Dr. Lazenby should have either performed a lateral canthotomy or given Mr. Beisel Malatal or intravenous Diamox. A canthotomy consists of splitting the small triangle formed by the eyelids which allows the lids to open wider and the eye to move forward, thereby relieving the pressure. Malatal is a sugar which sucks water out of the eye and makes it soft, while the Diamox stops the production of fluid within the eye and also softens the eye.

On cross-examination, Dr. Soloway admitted that he could not state whether Mr. Beisel’s eye would have been saved if Dr. Lazenby had performed a lateral canthoto-my or administered either Malatal or Dia-mox. On redirect examination, counsel asked Dr. Soloway whether it was reasonably probable that one of the three methods of treatment he recommended would have saved the eye. Rather than directly responding to the question, Dr. Soloway stated that he had had three patients with severe retrobulbar hemorrhages whose sight had been saved after he performed a canthotomy. Two other ophthalmologists testified that Dr. Lazenby’s treatment met accepted standards of care and that none of the treatments advocated by Dr. Soloway would have reduced the pressure in the amount necessary to save Mr. Beisel’s sight. The jury awarded Mr. Beisel $40,000 and his wife $10,000 for loss of consortium.

Dr. Lazenby contends that the court erred in refusing to grant his motion for directed verdict because there was insufficient proof of proximate cause to make a prima facie case of medical malpractice. He also argues that even if the evidence was sufficient to survive the motion for directed verdict, the court erred in instruct-: ing the jury that negligence is a legal cause of injury or damage if it lessens a person’s chance of complete recovery.

Clearly, there was no evidence that the employment of any of the procedures outlined by Dr. Soloway would have probably saved Mr. Beisel’s eye. Considering Dr. Soloway’s testimony in its strongest light, he said only that he thought that the pressure in the eye might have been relieved if Dr. Lazenby had pursued one of his recommended courses of action.

The standard for proving proximate cause in Florida has traditionally been one of probability. Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). Notwithstanding, Mr. Beisel argues that negligence is a legal or proximate cause of the damage if it lessens a person’s chances of recovery. There are two Florida decisions which support his argument. The first is Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), in which the court made the following observation:

The issue of proximate cause was as to whether appellees’ malpractice contributed to the cause of death. In this connection, the testimony that appellant’s decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.

293 So.2d at 750. The other case is Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1978), in which a hospital was charged with causing a patient’s death by negligently furnishing him with bank blood rather than fresh blood. The court relied upon Hernandez v. Clínica Pasteur, Inc. to hold that evidence that the failure to furnish fresh blood had deprived the patient of the best available chance for recovery was sufficient to present a jury issue on proximate cause.

On the other hand, the First District Court of Appeal in University Hospital Building, Inc. v. Gooding, 419 So.2d 1111 (Fla. 1st DCA 1982), has recently reached a contrary conclusion. In that case, a doctor testified that the hospital staff was negligent in failing to perform an adequate diagnostic procedure upon a patient who died in the emergency room. However, the same doctor expressed the opinion that even if the hospital had followed the recognized diagnostic methods, the patient would have had no more than a fifty percent chance of survival. In reversing a judgment for the plaintiff, the court stated:

Causation in fact is proved by evidence that more likely than not defendant’s negligence caused the injury. This same burden of proof applies regardless of whether the “but for” or the “substantial factor” test is used. The rule is stated by Prosser as follows:
On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant, (emphasis added)
The testimony of plaintiff’s expert, the strongest evidence presented on plaintiff’s behalf, establishes that decedent’s chances of survival, given all optimum conditions and prompt efficient action, were at best evenly balanced and less than probable. On this state of the proof, the case should not have been submitted to the jury.

419 So.2d at 1113-14 (footnote omitted).

The argument for reducing the standard for proving probable cause in cases like this apparently originated in Hicks v. United States, 368 F.2d 626 (4th Cir.1966), a medical malpractice case, in which the court said “[i]f there was any substantial possibility of survival and the defendant has destroyed it, he is answerable.” 368 F.2d at 632. This doctrine has been followed in a few jurisdictions. However, the greater number of courts addressing the issue have taken the traditional view.

The court in Cooper v. Sisters of Charity compared the merits of the two positions when it said:

A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a “substantial possibility” of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a “chance of recovery” to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic.

272 N.E.2d at 103.

In the final analysis, we are reluctant to make a judicial exception to the established standard for proving the causal relationship between negligence and harm. We hold that the court should have granted Dr. Lazenby’s motion for directed verdict. However, pursuant to article V, section 3(b)(4) of the Florida Constitution and rule 9.030(a)(2)(A)(vi) of the Florida Rules of Appellate Procedure, we certify our decision to the supreme court as being in direct conflict with the decisions of our sister courts in Hernandez v. Clínica Pasteur, Inc. and Dawson v. Weems.

REVERSED.

OTT, C.J., and SCHOONOVER, J., concur.

      . While the court spoke in terms of substantial possibility, the statement was unnecessary to its decision because under the facts of the case the plaintiff’s evidence satisfied the requirement of probability.

      . Daniels v. Hadley Memorial Hospital, 566 F.2d 749 (D.C.Cir.1977); Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972). In the opinion in Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981), the Pennsylvania Supreme Court stated that evidence that a doctor’s negligent conduct increased the risk of harm to the patient was sufficient to overcome a motion for directed verdict. However, the court went on to point out that the jury had to be instructed that before it could return a verdict for the plaintiff it must find that the increased risk of harm was a substantial factor in bringing about the harm which actually occurred. Thus, if the instant case had occurred in Pennsylvania, the court’s ruling on the motion for directed verdict would be affirmed but the judgment would have to be reversed for a new trial upon proper instructions.

      . Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (1980); Morgenroth v. Pacific Medical Center, 54 Cal.App.3d 521, 126 Cal.Rptr. 681 (1976); Connellan v. Coffey, 122 Conn. 136, 187 A. 901 (1936); Walden v. Jones, 439 S.W.2d 571 (Ky.1969); Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942); Cooper v. Sister of Charity, 27 Ohio St.2d 242, 272 N.E.2d 97 (1971); see Annot., 13 A.L.R.2d 11, 24 (1950).

      . Obviously, our decision moots the argument over the propriety of the disputed jury instruction. However, even if we had accepted Mr. Beisel’s proposition of law, we would have still had to ponder the effect of the omission of the word “substantial(ly)” which is usually included within the definition of the reduced standard for proving proximate cause.


author: JOANOS, Judge.

text:
    Charles Leonard BRAYTON, Appellant, v. STATE of Florida, Appellee.
    No. AI-310.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Rehearing Denied Feb. 4, 1983.
    Larry G. Turner and Thomas W. Kurrus of the Law Offices of Larry G. Turner, P.A., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appel-lee.
   JOANOS, Judge.

In this appeal of a judgment and sentence for trafficking in excess of 2000 pounds of cannabis, Brayton challenges the sufficiency of the evidence to establish the element of knowledge of the nature of the substance he was transporting, the denial of his motion to suppress evidence, and a jury instruction derived from Section 893.135(3), Florida Statutes. Finding no reversible error with regard to any of the issues raised, we affirm the judgment and sentence.

On June 23, 1981, appellant, who was driving a rented U-Haul truck, stopped at an agricultural inspection station where Inspector Sexton was on duty. Inspector Sexton asked to examine the cargo area of the truck, but Brayton said he did not have a key to the rear doors. According to Inspector Sexton Brayton explained that he was hauling furniture to California for a Mr. Jackson whom he had met in Miami. Brayton offered to call the employer for permission to break open the cargo area doors and proceeded to make a telephone call, but told Inspector Sexton he had been unable to reach the employer. Brayton said he would sleep in the truck until morning and try again to reach the employer, since Inspector Sexton advised him that he could not leave until the cargo area was inspected.

At this point, Inspector Sexton telephoned his supervisor, who in turn contacted the state attorney, and the state attorney telephoned Sexton to discuss the situation, saying he would obtain an agricultural search warrant and come to the scene. "When the state attorney arrived, Deputy Maxwell was with him. Shortly thereafter, Inspector Sexton’s supervisor arrived. No search warrant was produced. Maxwell walked to the rear of the truck and announced that he smelled cannabis in that area. He walked around to the front of the truck, awakened Brayton, and informed him that he was going to open the cargo area and did so using a pair of bolt cutters. Once the cargo area was open, numerous bundles wrapped in opaque plastic were visible. Deputy Maxwell used a knife to open one bundle, which contained material he believed to be cannabis. Brayton was arrested at this point. The entire event from the time Brayton stopped to his arrest covered one-and-a-half to two hours.

Focusing on the issue of proof of knowledge of the nature of the substance, appellant argues that in order to establish guilty knowledge, the State relied on evidence that appellant did not know the exact address to which he was going in California; a Fresno, California air terminal parking ticket which appellant told Maxwell he needed to obtain his automobile; the U-Haul contract which appeared to be in his name; and appellant’s claim that he had no key to the padlocked cargo area. Appellant argues that this circumstantial evidence is not inconsistent • with any reasonable hypothesis of innocence. To appellee’s argument that the truck was in Brayton’s exclusive possession, thus knowledge could be inferred, appellant replies that sole possession is not the equivalent of exclusive possession and the possibility that others have had access must be considered.

The evidence of guilty knowledge was sufficient under the criteria set forth in Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967):

If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive.

Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975), on which appellant places particular emphasis, is distinguishable on the issue of exclusive control or access. In that case “[t]he uncontradicted evidence before the jury was that the truck was loaded out of [defendants’] presence, that they did not have a key to the locked cargo area, and that they did not know of the contents.”

We also conclude that the trial court correctly denied the motion to suppress evidence. Inspector Sexton’s course of action and the length of the detention were not unreasonable. See Gluesenkamp v. State, 391 So.2d 192 (Fla.1980). In addition, Deputy Maxwell’s presence did not taint the proceedings. See Raettig v. State, 406 So.2d 1273 (Fla. 1st DCA 1981). Appellant concedes that Deputy Maxwell had probable cause to search upon detecting the odor of marijuana, and we conclude that the war-rantless search of the cargo area under the circumstances described above was not unreasonable. See Michigan v. Thomas, - U.S. -, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), and see generally State v. Farrugia, 419 So.2d 1118 (Fla. 1st DCA 1982). Once Deputy Maxwell had opened the cargo area, the search of the bundles observed inside was not illegal. See United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

At the request of the State and over defense objection, the trial judge gave an instruction derived from Section 893.135, Florida Statutes. This instruction was given as part of the instructions on potential maximum and minimum penalties and basically tracked the language of Section 893.-135(3), which provides:

The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

Appellant argues that this instruction violated his guarantee against self-incrimination by necessarily suggesting to the jury that by exercising his right not to speak in the face of accusation, he was covering up his complicity in the alleged crime. In light of Tascano v. State, 393 So.2d 540 (Fla.1980), holding that under Fla.R.Crim.P. 3.390(a), “upon request of either the state or the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed,” we cannot say that the trial court erred in giving this instruction.

The judgment and sentence is AFFIRMED.

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


author: McCORD, Judge.

text:
    COLUMBIA SUSSEX CORPORATION, INC., Appellant, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, and Jerrico, Inc., Appellees.
    No. AJ-355.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    J. Quinton Rumph of Rumph & Stoddard, Jacksonville, for appellant.
    Alan D. DeSerio and John H. Beck, Tallahassee, for appellee Dept, of Transp.
    John H. Wilbur, Jacksonville, for appellee Jerrico, Inc.
   McCORD, Judge.

Appellant, Columbia Sussex Corporation, Inc., appeals a final judgment of apportionment in which the trial judge ruled that appellant is not entitled to any apportionment of the damages awarded to appellee for the taking of a portion of appellee Jerri-co’s property in the eminent domain proceeding below. We affirm.

Appellant is the owner of the property adjoining Jerrico’s property. Appellant and Jerrico have reciprocal ingress, egress and parking easements on their adjacent properties. When a portion of Jerri-co’s land became the subject of the eminent domain proceeding, appellant became a party thereto and raised the issue of its own damages as a result of the taking. A verdict on damages was entered after which appellant moved for apportionment pursuant to Section 73.101, Florida Statutes. The trial court’s finding in its final judgment of apportionment that appellant did not suffer any damage resulting from the taking of the fee simple title to a portion of Jerrico’s property is supported by the evidence. Therefore, we affirm the final judgment.

In the final judgment of apportionment, the trial court gratuitously further stated that appellant may seek a separate award from the condemning authority, ap-pellee Department of Transportation. Although no issue has been raised as to that statement through cross-appeal by appellee Department of Transportation, we must deal with the question since that statement is inconsistent with our basis for affirming the trial court’s ruling. Since the issue of appellant’s damages was raised and determined in the proceeding below, appellant is precluded from further litigating such question against the Department of Transportation. See Block v. Orlando-Orange County Expressway Authority, 313 So.2d 75 (Fla. 4th DCA 1975).

AFFIRMED.

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


text:
    AMERICAN T.V. & COMMUNICATIONS d/b/a Orange/Seminole Cablevision and Highlands Insurance Company, Appellants, v. Susan TIMMERMAN, Appellee.
    No. AL-202.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Aidson, Orlando, for appellants.
    J. David Parrish of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, raise several points in their appeal from the deputy commissioner’s order finding appellee’s ear condition compensable and awarding medical and temporary total disability benefits. One point on appeal merits discussion and reversal.

Appellee was employed by appellant Orange/Seminole Cablevision, as a customer service representative answering telephones when, in August 1980, appellant employer issued a memo requiring service representatives to wear headsets (earphones). Shortly after beginning to use a headset, appellee began to experience ear problems. The deputy commissioner found her ear condition to be compensable. Competent substantial evidence supports that finding.

In assessing disability, the deputy commissioner stated:

I find, based on the claimant’s testimony and the .testimony of Dr. Gutman that she has been temporarily and totally disabled from the last date she worked at Orange/Seminole Cablevision other than the brief period of time she worked for a friend in January 1981.

That conclusion is not supported by competent substantial evidence. Dr. Gutman, a psychiatrist, first saw appellee in August 1981, approximately a year after the onset of her ear condition. His testimony is not competent as the basis for a temporary total disability award for the months preceding his examination of appellee. When he saw her, her condition was not the same as it was during the months preceding August 1981. She had contracted a new ear infection from which she had not been suffering during the whole of the preceding period.

Appellee quit her job with appellant in October 1980 due to her ear problem and has made no effort to obtain a job, except for a brief employment with a friend in January 1981 and one job inquiry in December 1980. Dr. Rosenberg, a neurologist who .saw appellee in December 1980, felt that she was employable at that time. There is insufficient evidence in the record to support the finding of temporary total disability prior to the time that Dr. Gutman first examined appellee. To that extent, the temporary total disability award is reversed.

We have considered the remaining points raised by appellant and find them to be without merit.

Affirmed in part and reversed in part.

BOOTH and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    D. Michael CHESSER, in his capacity as City Attorney for the City of Ft. Walton Beach, Florida, Appellant, v. Thomas B. RAY, Appellee.
    No. AL-492.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Rehearing Denied Feb. 2, 1983.

      D. Michael Chesser, Fort Walton Beach, for appellant.
    W. Dennis Brannon, of Dewrell, Blue & Brannon, Fort Walton Beach, for appellee.
   WENTWORTH, Judge.

Appellant, the Ft. Walton Beach City Attorney, seeks review of an order whereby it was determined that appellee, the former police chief and head of the city Department of Safety, is entitled to have his dismissal from employment reviewed by a termination committee impaneled pursuant to the “grievance procedure” provisions of Ft. Walton Beach Municipal Ordinance 678.1. We conclude that the ordinance’s grievance procedures are not intended to apply to the police chief and head of the city Department of Safety, and we therefore reverse the order appealed.

Ft. Walton Beach Municipal Ordinance 678.1 provides, at § 15A-41, that:

This grievance procedure is established to provide employees a full opportunity to bring to the attention of management matters of disagreement arising out of the employment relationship.

The ordinance then establishes, at § 15-44, a four-step grievance process for the presentment of complaints:

Step 1: Oral presentation to the employee’s immediate supervisor.
Step 2: A meeting with the appropriate Department Head.
Step 3: Written presentation to the City Manager.
Step 4 (Available only to employees “who have been discharged for violation of city Standards of Conduct ... [and] only ... after the employee has pressed his grievance through the first three steps): Written presentation, and a possible hearing, before a Termination Committee.

As appellant contends, the ordinance does tend to distinguish between employees and management, and upper-echelon management level personnel such as appellee have no possible point of entry into the grievance process below step three. Step four, including review by the Termination Committee, is expressly inapplicable unless “the employee has pressed his grievance through the first three steps.” Consideration of the entire ordinance, with particular attention to the provisions of § 15A-44, suggests that the grievance procedure is not intended to apply to management level personnel such as appellee.

Accordingly, the order appealed is reversed.

BOOTH and THOMPSON, JJ., concur.

      . And step three is itself an essentially ineffec-five procedure for personnel such as appellee.


text:
    STATE of Florida, Appellant, v. James Gordon MILNE and Norman B. Izzard, Appellees.
    No. 82-530.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Feb. 2, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    H. Dohn Williams, Jr., of Varón & Stahl, P.A., Hollywood, and the Law Office of Michael A. Masin, Miami, for appellees.
   PER CURIAM.

We reverse the order on motions to suppress evidence, some of which was obtained with and some without a search warrant, on the authority of Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981) and State v. Trepany, 409 So.2d 529 (Fla. 4th DCA 1982). The cause is remanded for trial or other appropriate proceedings.

REVERSED and REMANDED.

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.