text:
    Melvin ESMAN, as Personal Representative of the Estate of Leslie Ann Esman, deceased, Petitioner, v. BOARD OF REGENTS OF the STATE OF FLORIDA, d/b/a Shands Teaching Hospital & Clinics and J. Hillis Miller Health Center, and Pat Smith, Respondents.
    No. AM-340.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1983.
    Patrick H. Perry, Avera & Stripling, Gainesville, for petitioner.
    Lauchlin T. Waldoch, Dell, Graham, Will-cox, Barber, Henderson, Monaco & Cates, Gainesville, for respondents.
   PER CURIAM.

The plaintiff in this wrongful death action seeks review, by certiorari, of the trial court’s order denying the plaintiff’s discovery request. The trial court refused discovery on the grounds that the material sought was protected by the work product privilege, and further, that the material did not constitute “public records” within the contemplation of Chapter 119, Florida Statutes (1981), “Public Records Law.” We issued a show cause order.

Upon further consideration of the petition, the response, and petitioner’s reply, we conclude that the trial court’s interlocutory ruling denying discovery does not furnish the occasion for this court’s intervention through the use of the extraordinary writ. The rule is well-established, as stated in West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975), that interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certiorari when it is demonstrated that the order complained of was rendered by the court in excess of its jurisdiction, or that the order does not conform to the essential requirements of the law and may cause material injury through subsequent proceedings for which the remedy by appeal will be inadequate. Id. at 636. The denial of discovery in the present case does not meet this test. See, United States Fidelity & Guaranty Company v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981). But, Cf., Travelers Indemnity Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980).

Upon jurisdictional grounds, the petition for common law certiorari is hereby denied.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Plaintiffs sought production of a tape recorded conversation held the day after the surgical procedure which purportedly lead to the patient’s death, consisting of conversations between the individual defendant, the anesthesiologist, other medical personnel, and an agent of the respondents’ insurer. In support of their work product defense, the insurer’s agent testified that the conferences were held at the request of the insurer as a part of its initial investigation of an incident having claim potential, and for the express purpose of use by defense counsel in preparation for anticipated litigation. Vann v. State, 85 So.2d 133 (Fla.1956); Sligar v. Tucker, 267 So.2d 54 (Fla. 4th DCA 1972); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981). Respondents maintain, among other things, that there is no work product exception under Chapter 119, or, even if one exists, the plaintiff has not met the requirements of Rule 1.280(b)(2), Florida Rules of Civil Procedure, by an adequate showing of need and inability to obtain the information sought by other means.

      . Unlike the Fourth District, per its opinion in United States Fidelity & Guaranty Company v. Graham, supra, we do not find that our decision conflicts with that of the Fifth District in Travelers Indemnity Co. v. Hill, supra.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    Moses K. MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1959.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.
    Rehearing Denied Feb. 4, 1983.

      Gary S. Israel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an amended judgment of guilty for possession of a firearm by a felon and carrying a concealed weapon. We reverse the part of the amended judgment affecting the first charge and remand for new trial; but we affirm the part dealing with the second charge because we find appellant’s argument directed thereto to be meritless.

Appellant was charged in a five-count information for the above crimes as well as aggravated assault, battery and carrying a concealed firearm. The charge of possession of a firearm by a felon was severed from the other charges and tried first to a jury. It is in this initial trial that we perceive the harmful error which compels reversal.

At the conclusion of the evidence, appellant’s counsel had preserved his right to sandwich the state’s closing argument. We have reviewed the initial argument by appellant’s counsel and find it to be temperate. In his discussion of reasonable doubt, he remarked with respect to one witness: “There is a lot of reasonable doubt there as to the credibility of her testimony.” While this remark explicitly refers to the witness’ credibility, it skirts Florida Bar Code of Professional Responsibility DR 7-106(C)(4) (“a lawyer shall not ... [ajssert his personal opinion ... as to the credibility of a witness”) and is phrased in such a manner— when viewed in the light of his remaining argument — that it plainly should not have goaded the prosecutor into accusatory language.

Unfortunately, however, when the prosecutor undertook his closing argument he warmed to the task by asking the jury to consider whether appellant’s testimony was worthy of any belief. He then turned up the heat in one final blast:

I suggest to you, ladies and gentlemen, that here is a man who thinks he knows the law; thinks he can twist and bend the law to his own advantage and lie to you in court so that he is acquitted and not sent to prison as a result or otherwise adjudicated in any fashion.

This last comment, neither provoked nor justified, was a plain violation of the Code of Professional Responsibility. The criminal justice system cannot function without zealous prosecution, nor with unprofessional advocacy — whether the latter be in the form of indifference on the one hand or intemperate conduct on the other. One cannot successfully prosecute without fire in the belly nor with its misuse.

DELL and WALDEN, JJ., concur.

      . In contrast, see Broge v. State, 288 So.2d 280 (Fla. 4th DCA), cert. denied, 295 So.2d 302 (Fla.), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974), wherein defense counsel’s most abusive comments provoked a restrained remark by the prosecutor which was held to be fair rebuttal.

      . See Dukes v. State, 356 So.2d 873, 875-76 (Fla. 4th DCA 1978), in which this court granted a new trial, noting:
      The prejudice occurring from the State’s improper cross-examination of appellant and his eyewitness was further compounded in the prosecutor's closing argument relative to witness Blakley:
      “Now, he brought in this Jewell Blakley, admittedly a prostitute, admittedly a woman who has sold heroin to the same agent, A.W. Jackson, at the same location, 524 West Jackson Street, here in Orange County, and a woman who has admittedly been convicted of crimes so many times that she can’t even remember. And I tell you, ladies and gentlemen, that she is an incredible witness, and she is not worthy of your belief. She is a liar, clear and simple.” (T. 192-193)
      The prosecutor’s parting shot on the question of the credibility of the State’s witnesses versus the appellant’s was:
      “Now, you heard our case, and then you heard his case. You heard his witnesses, his prostitute, heroin pusher, convicted so many times she cannot count; who would think nothing of getting up on the stand and telling a lie for her buddy, Fred Dukes.
      “You heard his testimony, and you heard his criminal convictions....” (T. 227) Thus, the State clearly violated the rules relative to the impeachment of witnesses for pri- or criminal convictions and then laced its closing argument with stinging comment based upon the improper evidence so adduced.
      Finally, the State’s closing argument was also subject to criticism in that it violated Canon 7, DR7-106 of the Code of Professional Responsibility. In several instances the prosecutor asserted his personal opinion as to the credibility of witnesses.


author: PER CURIAM.

text:
    Allen J. CROTZER, a/k/a Allen J. Cortzer, Appellant, v. STATE of Florida, Appellee.
    No. 82-1209.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah A. Adamson, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s convictions but remand for correction of the sentences on counts 1 and 10.

First, the trial court’s retention of jurisdiction over count 1, the attempted robbery conviction, must be stricken, since section 947.16(3), Florida Statutes (1981), which.permits retention of jurisdiction over sentences for certain enumerated offenses, does not include attempted robbery on the list of applicable offenses. See Williams v. State, 374 So.2d 1086 (Fla. 2d DCA 1979). Second, it is apparent from the colloquy at the sentencing hearing that the trial court intended that the sentences for the two sexual battery convictions run concurrently and not consecutively as shown on the written sentence on count 10. Thus, the sentence must be corrected to reflect concurrent sentences on the sexual battery convictions.

There being no merit to appellant’s remaining contentions, his convictions are affirmed.

Accordingly, the judgments against appellant are affirmed, but the cause is remanded for correction of two of his sentences. Appellant need not be present for this purpose.

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


author: JOANOS, Judge.

text:
    MENTAL HEALTH DISTRICT BOARD, II-B, Appellant, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES; and Apalachee Community Mental Health Services, Inc., Appellees.
    No. AK-336.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Kenneth F. Hoffman of Oertel & Lara-more, Tallahassee, for appellant.
    Eric J. Haugdahl, Asst. Gen. Counsel, for Dept, of Health and Rehabilitative Services, Tallahassee, appellee. *
    Ronald W. Brooks of Brooks, Callahan & Phillips, Tallahassee, for Apalachee Community Mental Health Services, Inc., appel-lee.
   JOANOS, Judge.

This is an appeal from a declaratory statement issued pursuant to Section 120.-565, Florida Statutes, by the Department of Health and Rehabilitative Services (“HRS”).

Apalachee Community Mental Health Services, Inc. (“Apalachee”) petitioned HRS for a declaratory statement interpreting Sections 394.457 and 394.71-81, Florida Statutes. Apalachee alleged it had been providing and continued to provide mental health, alcohol, and Baker Act services, for which it received state financial aid, to a specific area since before 1976 and that there had been no decrease in local funds or local participations in the programs it provided. Further, Apalachee alleged that on September 21, 1981, the Mental Health Board District II-B (“Board”) requested proposals from other providers for some of the services which Apalachee had been providing. Apalachee also alleged the Board questioned the authority of counties to enter into contracts to provide services directly with providers such as Apalachee rather than proceeding through the Board. Finally, Apalachee alleged it was in doubt as to how HRS interprets Chapter 394, Florida Statutes, with reference to these matters. The specific questions posed by Apalachee in its petition were whether the Board is authorized to request proposals for alternative programs and providers for services provided by Apalachee since 1976, and whether contracts for services could be made directly between providers and counties, or whether the applicable statutory provisions require such contracts to be made solely through the Board.

The petition for a declaratory statement named both HRS and the Board as respondents and the Board moved to dismiss the petition. The primary ground for dismissal alleged was that Apalachee had not alleged a controversy between itself and HRS, but instead alleged a controversy between itself and the Board, seeking to make HRS an arbiter. The Board asserted that the purpose of declaratory statements is to resolve agency controversies or answer questions or doubts concerning the applicability of any statutory provision or rule as it does or may apply to the petitioner in his particular circumstances, and as petitioner sought a determination of the validity of the actions of a third party, the Board, proceedings for a declaratory statement were not authorized.

HRS denied the Board’s motion to dismiss and went on to issue a declaratory statement on the two questions set forth above. In the final declaratory statement, HRS stated that Section 394.81 does not prohibit a mental health board from requesting proposals from alternative programs and providers, however, HRS also noted:

if an existing service provider is providing quality services based on service priorities in the approved district plan and conforms to existing contracts, rules and statutes, there is no need to request proposals from other providers. In fact, to do so would be disruptive to the continuity of service delivery. However, in the event an existing provider is not in compliance with the contract, rules or statutes and if monitoring and evaluation data indicate poor quality or inappropriate service, it may be desirable for a district mental health board to request proposals to improve the quality of the services.

In answer to the question as to direct contracting between providers and counties, HRS stated:

The ... question ... appears to request an impermissible statement of general applicability. However, a review of the petition indicates that Apalachee provides certain ... services by contract directly with Franklin and Gadsden counties and not by an award or contract through the Board. With this particular set of circumstances, an HRS response ... is appropriate.
Sections 394.71-394.81, Florida Statutes (1981), do not prohibit a contract for providing mental health, alcohol or Baker Act services made directly between the provider and a particular county. Further, these sections do not require that such a contract be made solely by and through a district mental health board.

On appeal, the Board argues HRS erred in entering the declaratory statement because the petition and declaratory statement attempt to bind a third party, the Board, which amounts to a deprivation of due process of law; the declarations in the statement are determinations of statewide applicability, which require rulemaking; disputed, material facts existed requiring a formal, adversary hearing; and the statements are contrary to HRS’s own rules and changes in rules can only be made in formal rulemaking proceedings.

In response, Apalachee points out that HRS is the “Mental Health Authority” of Florida and the appropriate body to interpret the statutory provisions involved, and that the HRS district administrator is responsible for reviewing the district plan submitted by the District Mental Health Board, suggesting a hierarchal structure in which the Board is subject to HRS interpretations of the statutory provisions it is responsible to administer. Rule 10E-4.-09(2)(a), Fla.Admin.Code, provides that the Board is the direct link between HRS and community services and is responsible to HRS for programs, priorities, and services.

“A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only.” Section 120.565, Florida Statutes. In its statement as to the solicitation of proposals by the Board, HRS has basically determined the applicability of Section 394.81 to Apalachee , assuming Apalachee is in compliance with the contracts, rules, and statutes, and is providing appropriate, good quality service. The order does not address how this determination is to be made, however, presumably until there has been a showing that Apalachee is no longer in compliance with contracts, rules, and statutes, or providing appropriate, good quality care, Apalachee is entitled to continuing financial aid in accordance with Section 394.81. Therefore, this part of the statement is within HRS’s authority to give its opinion as to the applicability of a statutory provision, rule, or order “as it applies to the petitioner in his particular set of circumstances only.” We recognize that this carries implications for the Board’s relationship with Apalachee and to some extent may limit the Board’s options. However, the statement is consistent with agency policy of promoting continuity of services, see Rule 10E-4.09(2)(b), Fla.Admin. Code, and there is no doubt that HRS is responsible for the administration of Section 394.81, Florida Statutes, see Section 394.78(1), Florida Statutes.

Regarding the question of direct contracting between counties and mental health services providers, however, it appears HRS’s initial impression was correct, that resolution of the question requires a statement of general applicability which is not an appropriate result of a declaratory statement, as it does not address the applicability of a statute, rule, or order “to the petitioner in his particular set of circumstances only." (e.s.) Even though Apala-chee is currently involved in direct contracts with several counties, this is not necessarily a situation peculiar to Apalachee, but instead carries implications for providers and counties statewide. Declaratory statement proceedings are not appropriate when the result is an agency statement of general applicability interpreting law or policy. See generally Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977).

The final order is AFFIRMED insofar as it declares the applicability of Section 394.-81 to Apalachee, and REVERSED insofar

as it addresses the propriety of direct contracting between providers and counties,

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

      . 394.81 Current state financial aid continued. —The department shall continue to provide financial aid to all programs and facilities which are receiving state aid on December 31, 1976, if:
      (1)The board district within which the program or facility is located provides the minimum required services, as defined in s. 394.75(3)(a)-(f); or
      (2) The district administrator is satisfied that such services will be provided within a reasonable period, or is satisfied that the other provisions of s. 394.76(4)(c), are applicable; and
      (3) There is no decrease in local funds and local financial participation in the program.


author: LARRY G. SMITH, Judge.

text:
    FOOD MACHINERY CORPORATION and National Union Life Insurance, Appellants, v. Delmis SHOOK, Appellee.
    No. AK-411.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Rehearing Denied Feb. 9, 1983.
    Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Richard R. Roach, Jr., of Woods, Murray & Roach, P.A., and Lex Taylor, Lakeland, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier cites several alleged errors in the deputy commissioner’s award of permanent partial disability for claimant’s noise-produced hearing loss. We affirm.

The evidence was sufficient to meet the three-pronged test of Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). First, the claimant worked for twenty-three years in a one-room, seven hundred foot long machinery-filled manufacturing plant. This was prolonged exposure. Secondly, Dr. Barranco, an eye, ear, nose and throat specialist, found from tests he performed that claimant had nerve damage resulting in approximately 36.2 percent hearing loss in both ears, a significant portion of which was due to long term noise exposure. In addition, the claimant established that before his work with Food Machinery Corporation, the employer, he was not exposed to any unusual or excessive noise trauma in his work, and both claimant and his wife verified that he was exposed to no unusual or excessive noise trauma during his off-hours. Thus causal relationship was established. Thirdly, the building where claimant worked contained, among other things, ten-foot and twenty-foot shears used to cut thick steel plates. When these shears operated, the whole building shook. Claimant’s work consisted of building forms for concrete. He spent all day pounding steel sheets with a ten-pound sledge. In his immediate area, in the center of the building, were fifteen to twenty welding machines and twenty air grinders. The workers welded seams on the steel forms, then turned the sheets over to grind the welds smooth. There were also gasoline-powered forklifts operating in the building. Claimant worked on structural assembly for about twenty-one years. During his last two years, he assembled popsickle machines made of stainless steel. The claimant testified that it was the noisiest place he had ever seen in his life. Thus, exposure to a noise hazard greater than that to which the general public is exposed was established.

We conclude that causal relation was established by “clear evidence,” as mandated by Harris v. Joseph’s of Greater Miami, 122 So.2d 561, 562 (Fla.1960). Here there was medical evidence, based upon tests, that the claimant’s hearing loss was due to noise trauma. The fact that Dr. Barranco could not specify the specific incident or type of noise which caused the claimant’s condition is immaterial. The “logical cause” doctrine, which is generally applicable with respect to other types of injuries, is applicable here. As to “logical cause,” generally, see Fisher v. Carroll Daniel Fisher Construction Co., 212 So.2d 289 (Fla.1968); Logan v. Poe’s Hardware & Rentals, 381 So.2d 1170 (Fla. 1st DCA 1980); and see, also, Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981), which impliedly, though not expressly, relied upon the logical cause doctrine to establish causation in an exposure case.

The E/C challenge the deputy commissioner’s finding that the absence of noise level tests is not fatal to the claimant’s case. The E/C contend, correctly, that the burden of proof rests upon the claimant to come forward with noise level tests, if such evidence is required to prove his claim. We agree with the E/C’s position with respect to the burden of proof, but we do not agree that the deputy commissioner improperly shifted this burden. First, the E/C have not provided us with any legal authority to the effect that proof of excessive noise levels can be made only by scientific tests. The claimant’s description of the plant’s machinery and operations “leaves no doubt,” according to the deputy commissioner’s finding, that the noise factor in the claimant’s work place exceeded that to which the general public is exposed. While the subject of noise levels would undoubtedly be an appropriate one for expert testimony, we are not convinced that it is one that necessarily requires expert testimony. See, Law Revision Council Note— 1976, Florida Evidence Code, Section 90.702, Florida Statutes Annotated, Yol. 6C, page 195: “If the issue involves a matter of common knowledge about which the ordinary layman would be capable of forming a correct judgment, expert testimony is not admissible. If the triers of fact have a general knowledge of a matter, but an expert’s testimony would aid their understanding of the issue, it would be admissible.” Secondly, we note that the E/C presented no evidence to refute the claimant’s testimony on this issue. Accordingly, the determination of whether or not the noise level to which claimant was subjected exceeded that to which the general public is exposed was a matter within the authority of the deputy commissioner to decide; based upon all the evidence.

The E/C next contend that the claim for benefits was untimely because the claimant failed to file his claim within the two-year period prescribed by Section 440.-19, Florida Statutes. The evidence on this issue was somewhat conflicting, and the resolution of those conflicts was a matter for the deputy commissioner. Dr. Barranco first saw the claimant on June 1,1979. The claimant’s original claim was filed on April 22, 1981, listing the date of accident as “NA.” Although it appears that an accident date of “1-17-79” was “penciled in” on this form, it was denied that this date was inserted by the claimant, or his attorney. Claimant’s attorney filed a renewal of this claim on August 31, 1981, listing an accident date of June 1, 1979. In addition to this irregularity, it appears that a complete diagnosis of claimant’s condition was delayed by complications resulting from his Meniere’s disease. The deputy commissioner found that it was June 1,1979 before the claimant reached a point where his hearing loss had become disabling and he was required to seek medical attention. He therefore concluded that June 1, 1979 was the date of the “accident,” so that the claim filed on April 22, 1981 was timely. Reversible error has not been shown on this point.

In view of our resolution of the issues above discussed, issues regarding the award of future medical care, attorney’s fees and costs, are rendered moot.

One other matter requires further adjudication by the deputy commissioner. By order dated November 24, 1981, the deputy commissioner ordered that should compensation benefits be awarded to the claimant, the claimant would be required to reimburse the E/C from those benefits for expenses incurred by the E/C in preparation for and attendance at a hearing scheduled November 19, 1981, at which the claimant failed to appear. Although the claimant insists that recovery of these expenses should be barred because the E/C failed to present evidence of those expenses, we disagree. The earlier order awarding costs and expenses was on a matter separate and distinct from the issues involved at the hearing on the merits. Although we have on several occasions declined to grant relief as to matters which should have been raised at the hearing, or within the thirty day period following entry of the order within which errors or omissions can be corrected, this order stands on a different footing. Accordingly, upon remand the E/C shall be entitled to present evidence and the deputy commissioner shall make such award as appears appropriate with respect to these costs and expenses.

The order appealed from is AFFIRMED on the merits, and REMANDED for further proceedings with respect to costs and expenses to be awarded pursuant to the order of November 24, 1981.

SHAW and JOANOS, JJ., concur.

      . The three-pronged test of Festa v. Teleflex, Inc., 382 So.2d at 124 is as follows: “In summary, for a claimant to recover under the exposure theory of accident, he must show 1) prolonged exposure, 2) the cumulative effect of which is injury or aggravation of a pre-existing condition and 3) that he has been subjected to a hazard greater than that to which the general public is exposed.”

      . The claimant was also diagnozed as suffering from Meniere’s disease, a symptom of which is dizziness, which was found to be not work-related.

      . The deputy commissioner found, based upon the testimony of the claimant and Dr. Barran-co, that the noise exposure described by the claimant over a twenty-three year period presented a particular hazard of hearing loss, distinguishable from, and in excess of usual occupations, a finding which he further based upon the doctor’s testimony that it is common knowledge that factories have a higher noise level than the usual occupation.

      . The presence of medical evidence that the claimant’s hearing loss was due to noise trauma distinguishes this case from D’Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA 1980). In D’Avila, the issue of causation was resolved against the claimant, where there was no medical evidence that the claimant’s chronic asthma was actually caused by polyester particles. As pointed out in the opinion, the doctors “merely assumed” a causal relation, yet there was no test to determine if polyester particles were actually present in her lungs, and the only test for polyester allergies proved negative. Id. at 1173. Further, the concentration of polyester particles in the work site was not shown to exceed acceptable standards, and other causes for claimant’s condition were just as likely.

      .We find a parallel, on this point, in occupational disease cases, to which exposure cases are closely related, holding that a specific chemical test is not an essential to proof of a causal relation between a disease condition and conditions on the job site. Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902, 905 (Fla. 1st DCA 1981); King Motor Co. v. Pollack, 409 So.2d 160, 164-165 (Fla. 1st DCA 1982); Smith v. Crane Cams, Inc., 418 So.2d 1266 (Fla. 1st DCA 1982).

      . Cf., Hillsborough County School Board v. Bigos, 396 So.2d 848 (Fla. 1st DCA 1981) (causal connection between teaching employment and infectious hepatitis not shown where medical witnesses could not determine whether teacher contracted the disease from student, or vice versa).

      . It was actually May of 1981 before Dr. Bar-ranco became convinced that claimant’s hearing loss resulted from noise trauma.

      .The deputy commissioner’s determination of the date when the statute of limitations begins to run is in accord with American Beryllium Co. v. Stringer, 392 So.2d 1294 (Fla.1980), holding that it is the date of disability, in occupational disease cases, not the date of the disease, that fixes the time of “accident,” for purposes of complying with the two-year limitation upon the filing of claims. No reason has been suggested why the same rule should not apply in exposure cases.


text:
    William E. BLOCKER, Robert A. Blocker, J. Frank Blocker, d/b/a Blockers House Movers and Leader National Insurance Company, a foreign corporation authorized to do business in Florida, Appellants, v. Lola Denise WYNN, as Personal Representative of the Estate of Robert James Wynn, Deceased, Appellee.
    No. AL-245.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Rehearing Denied Feb. 2, 1983.

      Patrick J. Farrell, Jr. of Fuller & Johnson, P.A., Tallahassee, for appellants.
    Michael F. Coppins of Douglass, Davey & Cooper, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellants appeal from a jury verdict in favor of the plaintiff in a wrongful death action. We affirm.

This action arose out of a tragic accident which occurred on the Swamp Creek Bridge in Gadsden County. Plaintiff’s decedent, Bucky Wynn, was 19 at the time of his death. He and the plaintiff, Denise Wynn, had been married less than a year. Decedent drove a dump truck for Chance Hauling and Paving, Inc., and at the time of the accident was hauling a truck load of sand. At the time decedent began his fatal trip, appellants were engaged in moving a house across the Swamp Creek Bridge.

While the house was on the bridge it completely blocked both lanes of traffic. Robert Blocker had driven the escort vehicle a mile and a half up the road to an intersection where he parked on the side of the road so that he could stop traffic and prevent people from driving down the two-lane highway to the bridge. He could not see the house from where he parked, the bridge being down the hill and around a curve from his position. The escort vehicle had a flashing yellow light on top, but no signs. He usually carried a red flag to stop approaching vehicles, but it was not in the truck that day. Wynn’s truck and two more vehicles got past the escort vehicle while Robert was looking for the flag. The testimony indicates that decedent should have been able to see the house from approximately 1,024 feet away, downhill and around the curve. The weather was clear and dry. Just before impact, decedent’s, truck swerved to the left of the pulling truck, then went through the house, exiting on the right side, and crashed through the guardrail of the bridge, coming to rest upside down in the creek. Witnesses testified that Wynn was apparently alive when he crashed through the side of the bridge, but they were unable to pull him from the submerged truck.

Decedent’s employer testified that the truck brakes were relined two months before the accident. Parts were cannibalized from the wrecked truck before the employer was told to leave it alone so that it could be examined by experts. Denise testified that decedent never complained to her about his job or the brakes on the truck. However, two of decedent’s friends testified that he had complained to them about the brakes on the truck, and that he could only stop the truck by gearing down. Appellants’ expert testified that the brakes had been improperly repaired, and were in poor condition. He said that the stopping distance for good brakes on that road and grade with the load the truck was carrying was 301 feet. Based on the conditions the brakes were in, it would have taken decedent 1,264 feet to stop, that is, 264 feet through the house, at best.

The jury found appellants 80% negligent, and decedent 20% negligent. They fixed the amount of damages at $240,000.00. Appellants’ various post-trial motions were denied, and appellants appealed. Only one of the issues raised requires discussion.

Appellants urge error in the trial judge’s refusal to instruct the jury that they could apportion the negligence of the employer, thus reducing appellants’ liability by the proportionate amount of fault attributable to the employer. After retracing the history of the present day apportionment and contribution rules, we find that we are unable to agree with appellants.

The Supreme Court of Florida in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), adopting the comparative negligence rule, declared that when the negligence of more than one person contributes to an accident, each should pay the proportion of total damages he has caused the other party. Id. at 439. However, in Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), receding (in the light of Hoffman v. Jones) from the rule of no contribution among joint tortfeasors, the court applied the then newly-enacted Section 768.31, Florida Statutes (1975) as the rule in Florida, holding that the full, joint, and several liability of joint tortfeasors to the plaintiff was retained, providing only for a contribution among them on a pro rata basis. The relative degrees of fault of the joint tortfeasors was not a factor to be considered under the statute in existence at the time of that decision. 318 So.2d at 393.

The prohibition against consideration of the relative degrees of fault of joint tort-feasors did not long remain the law, however, for in 1976 the contribution statute was amended to specifically provide that in determining pro rata shares for purposes of contribution, “the relative degrees of fault” of joint tortfeasors would be the basis for allocation of liability. Section 768.31, Florida Statutes, as amended, Chapter 76-186, Laws of Florida (1976).

Under the amended contribution statute, appellants here would be entitled to seek contribution from the decedent’s employer, based upon the employer’s relative degree of fault, except for the operation of Section 440.11, Florida Statutes. This statute provides immunity in behalf of an employer, as to an employee and any third party tort-feasor, for injuries to the employee covered by workers’ compensation benefits. Section 440.11 “precludes an employer from being a designated a person ‘jointly or severally liable in tort for the same injury to person or property’ as used in the contribution act.” Seaboard Coastline Railroad Company v. Smith, 359 So.2d 427, 429 (Fla.1978) (upholding the constitutionality of the section). Thus, there could have been no adjudication of liability against the employer in this suit even if the employer had been made a party — which it was not. We find no basis upon which appellants would be entitled to the relief they seek given the present status of the law of Florida with respect to the doctrine of joint and several liability. This court has recently rejected the argument that joint and several liability has been superceded by comparative negligence. Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981).

Appellants recognize that Florida case law firmly establishes the principle that in fixing liability the negligence of a non-party tortfeasor cannot be apportioned. Model v. Rabinowitz, 313 So.2d 59 (Fla. 3rd DCA 1975), cert. den. 327 So.2d 34 (Fla.1976); Souto v. Segal, 302 So.2d 465 (Fla. 3rd DCA 1974); Echeverria v. Barczak, 308 So.2d 633 (Fla. 3rd DCA 1975), cert. den. 321 So.2d 558 (Fla.1975); Travelers Ins. Co. v. Ballinger, 312 So.2d 249 (Fla. 1st DCA 1975); and Davis v. Lewis, 331 So.2d 320 (Fla. 1st DCA 1976), cert. den. 348 So.2d 946 (Fla.1977). They urge, however, that no Florida case has yet addressed the issue presented here, that is, the rights of a third party tortfeasor vis-a-vis the suing plaintiff, when the nonparty tortfeasor is immune from tort liability in connection with the occurrence causing the injuries. We agree that if Florida’s contribution system were governed by “pure apportionment,” appellants’ contention that their liability should be reduced by the percentage of negligence attributable to the employer would have merit. However, “pure apportionment” was specifically rejected by the Florida Supreme Court in Lincenberg, 318 So.2d at 392, n. 2, and more recently by this court in Department of Transportation v. Webb, 409 So.2d 1061, 1063 (Fla. 1st DCA 1981). That the rule may be otherwise in other jurisdictions does not persuade us to abandon the precedential rulings of this and other Florida courts. See, C. Heft & C. Heft, Comparative Negligence Manual, § 8.131, and § 3.160. See also, Pocatello Indust. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399 (1980).

Finally, on the apportionment issue, we must reject appellants’ alternative theory under which they argue that their liability should be reduced by the employer’s proportionate share of total fault up to the amount of workers’ compensation benefits paid. Even if that procedure were permissible, here it would not be feasible, because the employer was not a party to this proceeding, no effort was made to join the employer as a party, and there is no basis for a finding of the “employer’s proportionate share of the total fault” as urged by appellants. In sum, the employer has not been found at fault in connection with the causation of the accident, and in our view there is no way in which the employer’s “fault” can be adjudicated and factored into the contribution equation without substantially altering the “balancing” of rights and obligations in the employer-employee relationship that gives validity to the workers’ compensation law. See, Carr v. Central Florida Aluminum Products, 402 So.2d 565 (Fla. 1st DCA 1981); Acton v. Fort Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982); Chapman v. Dillon, 415 So.2d 12 (Fla.1982).

AFFIRMED.

SHAW and JOANOS, JJ., concur.


text:
    Willard BROXSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-335.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1983.
    Rehearing Denied Feb. 9, 1983.
    Willard Broxson, pro se.
    Earl H. Archer, Asst. Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Broxson appeals from the Parole Commission’s order refusing, upon biennial review of his presumptive parole release date, to consider alleged errors committed during the establishment of his parole date two years ago. Jurisdiction of this appeal was temporarily relinquished for the Commission to correct a clerical error. See McClain v. Florida Parole and Probation Commission, 416 So.2d 1209, 1211 at fn. 5 (Fla. 1st DCA 1982).

The special Commission action certified June 18, 1982, is affirmed. The Commission’s action declining to address issues raised in Broxson’s biennial review request, certified October 20, 1981, is otherwise affirmed. See Cook v. Florida Parole and Probation Commission, 423 So.2d 492 (Fla. 1st DCA 1982); Sheets v. Florida Parole and Probation Commission, 423 So.2d 464 (Fla. 1st DCA 1982); Johnson v. Florida Parole and Probation Commission, 423 So.2d 480 (Fla. 1st DCA 1982); Myers v. Florida Parole and Probation Commission, 423 So.2d 481 (Fla. 1st DCA 1982); Dornau v. Florida Parole and Probation Commission, 420 So.2d 894 (Fla. 1st DCA 1982); McClain v. Florida Parole and Probation Commission, 416 So.2d 1209 (Fla. 1st DCA 1982); and Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    K.A.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-538.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Rehearing Denied Feb. 2, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

In this juvenile proceeding we reverse the trial court’s adjudication of delinquency for carrying a concealed firearm. There is no evidence that supports a finding of joint control over a firearm. Coley v. State, 393 So.2d 60 (Fla. 3d DCA 1981); Powell v. State, 335 So.2d 304 (Fla. 1st DCA 1976), cert. dismissed 348 So.2d 953 (Fla.1977); Cf. Harris v. State, 307 So.2d 218 (Fla. 3d DCA 1975).

We affirm the adjudication of delinquency and disposition as to the loitering and prowling charge. Hardie v. State, 333 So.2d 13 (Fla.1976); State v. Ecker, 311 So.2d 104 (Fla.1975).

Reversed in part and affirmed in part.


author: SCHEB, Judge.

text:
    Kathy CONEY, Appellant, v. INTERNATIONAL MINERALS & CHEMICAL CORPORATION, Appellee.
    No. 82-213.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.
    Charles L. Carlton of Carlton & Carlton, P.A., and Kenneth C. Glover, Lakeland, and J. Blayne Jennings, Gifford, for appellant.
    Julian Clarkson and M. David Alexander of Holland & Knight, Tampa, for appellee.
   SCHEB, Judge.

Tony Coney died in 1979 as a result of an industrial accident at International Minerals and Chemical Corporation (IMC) where he was employed. Coney’s widow, Kathy, on behalf of herself and her children accepted benefits under the Workers’ Compensation Act, chapter 440, Florida Statutes. Thereafter, she filed suit alleging that her husband’s death resulted from IMC’s culpable negligence and sought compensatory and punitive damages. She assailed the constitutionality of the Act as applied to her and her children. The trial court upheld the constitutionality of the Act and held that it precluded an award of either compensatory or punitive damages against the decedent’s employer, IMC. The court entered a final summary judgment in favor of IMC, and this appeal ensued.

Appellant first urges that the Workers’ Compensation Act is unconstitutional. There is no merit to such contention and it does not warrant further discussion. Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972), appeal dismissed, 411 U.S. 944, 93 S.Ct. 1923, 36 L.Ed.2d 406 (1973). Even assuming the constitutionality of the Act, insofar as it prevents her from recovering compensatory damages, appellant next argues that she may maintain a separate action seeking punitive damages for the alleged culpable negligence of IMC. We disagree.

Appellant cites Nales v. State Farm Mutual Automobile Insurance Co., 398 So.2d 455 (Fla. 2d DCA), petition for review denied, 408 So.2d 1092 (Fla.1981), as support for her position. Her reliance is misplaced. In Nales we held that where a plaintiff injured in an automobile accident is denied recovery of compensatory damages solely because the plaintiff did not cross the no-fault threshold, an award of punitive damages is nevertheless allowable if otherwise appropriate. Nales did not recognize a separate action for punitive damages. More importantly, Nales has no applicability here. To allow appellant to sue her late husband’s employer, IMC, after she has accepted compensation benefits would be contrary to the exclusiveness of remedy doctrine embodied in the workers’ compensation law.

Section 440.11(1), Florida Statutes, states:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ....

As we explained in Chorak v. Naughton, 409 So.2d 35, 38 (Fla. 2d DCA 1981):

The purpose of the exclusiveness of the Workers’ Compensation Act is to limit the liability of the contributing employer to the compensation benefits secured. In return for accepting vicarious liability for all work-related injuries and for surrendering traditional defenses, the employer is allowed to treat compensation as a routine cost without exposure to tort litigation. Likewise, the employee relinquishes his tort remedies for a system of compensation sparing him the cost, delay, and uncertainty of litigation.

Appellant’s contention that IMC’s culpable negligence entitled her to punitive damages, regardless of her being barred from suing for compensatory damages, is unavailing. As the supreme court observed in Seaboard Coast Line Railroad v. Smith, 359 So.2d 427, 429 (Fla.1978):

An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And, whether the injury to the employee is caused by “gross negligence”, “wanton negligence”, “simple negligence” passive or active, or no negligence at all of the employer, is of no consequence. There is no semblance of suggestion in these statutes that the Legislature intended to make any distinction in degrees of negligence so far as the employer’s immunity is concerned and we see no reason or logic in any distinction.

In other states where the exclusiveness of remedy provision in a workers’ compensation act has been challenged, the courts have upheld it against a claim for punitive damages over and above benefits already received under the act. See Roof v. Velsicol Chemical Corp., 380 F.Supp. 1373 (N.D. Ohio 1974); North v. United States Steel Corp., 495 F.2d 810 (7th Cir.1974); Wooddell v. Washington Steel Corp., 269 F.Supp. 958 (W.D.Pa.1967); Stricklen v. Pearson Construction Co., 185 Iowa 95, 169 N.W. 628 (1918); Liberty Mutual Insurance Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963).

Accordingly, we hold that the exclusiveness of remedy doctrine embodied in section 440.11(1) bars recovery by appellant against IMC for either compensatory or punitive damages. Sharpe v. Monfort, 419 So.2d 1186 (Fla. 1st DCA 1982).

AFFIRMED.

OTT, C.J., and DANAHY, J., concur.


author: GRIMES, Judge.

text:
    Nancy E. SZOT, Appellant, v. Anthony J. SZOT, Appellee.
    No. 82-328.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.

      Ernest M. Jones, Jr., of Jacobs, Valentine, Groseclose, McCarthy & Vining, P.A., Lake-land, for appellant.
    Walter W. Manley, II, Lakeland, and Gerald W. Medeiros, Lakeland, for appellee.
   GRIMES, Judge.

This appeal from a final judgment of dissolution requires a careful understanding of the facts. The parties were married in 1965 and separated in January of 1981. Two children were born of the marriage: a daughter, aged fifteen, and a son, aged twelve. During the marriage, the wife attended college over a period of nine years and ultimately received a bachelor’s degree from the University of South Florida. After she separated from her husband, she moved to Tallahassee for post-graduate study. Upon earning her master’s degree, she believes she can obtain employment at an annual starting salary of about $13,000.

During most of the marriage, the husband worked as a startup engineer and earned between $20,000 and $30,000 per year. In 1980, he was unemployed for about six months and now works for a swimming pool company at a salary of $186 per week. The husband has a two year college degree but says he needs additional education since there is no longer any demand for his skill. The husband testified that he and his wife had an agreement that he would return to college after the wife finished her education. The parties own their marital residence worth approximately $110,000, which is subject to a $50,000 mortgage. Since their marriage, they acquired securities which at the time of the final hearing had a value of about $56,000.

The two children had been living with the husband since their mother had moved to Tallahassee. The children wished to remain in Lakeland, so the wife did not contest the award of their custody to the husband. The court also gave the husband exclusive possession of the marital home while the children were in his custody. The wife primarily complains of a provision in the judgment which read as follows:

4.From the sums held to the account of the husband in Merrill Lynch funds, the amount of $56,000, Twenty Thousand Dollars is awarded to the husband and a trust is hereby imposed in the amount of $20,000 of such funds to be held by him, in trust, for the purpose of providing for the college education of the children; the sum of $16,000 is awarded to the husband to pursue his education; the remainder of such funds shall be divided equally between the husband and wife.

The husband argues that this court’s opinion in Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980), justifies the $20,000 award for the children’s education. In that case, we upheld an order requiring a financially able husband to pay additional alimony to cover the increased expenses of the wife in providing a college education for the parties’ two exceptionally bright children who were already of college age. Here, there was no evidence concerning the children’s suitability for college. In fact, the oldest child was only fifteen years old, and there was no indication that either of them had yet considered attending college. Furthermore, the Nicolay award was periodic and subject to modification. Here, the court simply awarded the husband $20,000 in the nature of lump sum alimony to be held in an unsupervised trust for the children’s education if they ever did go to college. In deciding Nicolay, we felt justified by its compelling facts to make a reasoned departure from the general principle that parents cannot be required to support their healthy children beyond the age of majority. We did not envision that Nicolay would have widespread application. There is no theory which can support the $20,000 award.

The $16,000 award for the husband’s college education stands on a different footing. Apparently, the court sought to implement what it believed was the agreement of the parties. Accepting the premise that the husband is in need of retraining, the $16,000 award can be sustained as lump sum rehabilitative alimony. See Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976); McRee v. McRee, 267 So.2d 21 (Fla. 4th DCA 1972). Lump sum alimony may be awarded to insure an equitable distribution of property acquired during the marriage if the record reflects a justification for a lump sum payment and the other spouse has the financial ability to make the payment without substantially endangering his or her economic status. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The wife’s remaining point on appeal is without merit. We reverse the $20,000 award to the husband and direct that these funds be divided equally among the parties. Otherwise, the judgment is affirmed.

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


text:
    STATE of Florida, Petitioner, v. Joseph REDNER, Respondent.
    No. 82-506.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.
    E.J. Salcines, State Atty., and Darlene Rebowe and Elizabeth L. Hapner, Asst. State Attys., Tampa, for petitioner.

      Donald E. McLawhorn, Tampa, for respondent.
   GRIMES, Judge.

The state files this petition for writ of certiorari to review an order of the circuit court which reversed the county court and declared invalid City of Tampa ordinance 25-9.

The respondent was arrested for violating that portion of city ordinance 25-9 which makes it unlawful for any employer of persons working where alcoholic beverages are sold to permit them to remain in such employment longer than forty-eight hours without having registered with the police department. Respondent attacked the ordinance as unconstitutional and contended that the city did not have authority to pass such an ordinance. The county court denied the respondent’s motion to dismiss. Respondent then pled nolo contendere, reserving his right to contend on appeal that the motion was improperly denied. On appeal, the circuit court reversed on the premise that the city had no authority to enact ordinance 25-9 because the State of Florida had preempted the subject matter of the ordinance.

The argument for preemption is that the legislature has already enacted comprehensive state laws regulating the sale of alcoholic beverages. In Edwards v. State, 422 So.2d 84 (Fla. 2d DCA Nov. 19, 1982), we recently rejected the contention that the City of Venice could not pass an ordinance pertaining to the possession of cannabis and cocaine simply because of the passage of the Florida Comprehensive Drug Abuse Prevention and Control Act. We explained that under Home Rule a municipality may now enact legislation on a topic already visited by state law except in those areas where the subject matter has been expressly preempted by the constitution or state law or when the ordinance directly conflicts with state law.

Section 562.45(2), Florida Statutes (1981), reads as follows:

Nothing in the Beverage Law contained shall be construed to affect or impair the power or right of any incorporated municipality of the state hereafter to enact ordinances regulating the hours of business and location of place of business, and prescribing sanitary regulations therefor, of any licensee under the Beverage Law within the corporate limits of such municipality.

This statute implies that local control of establishments selling alcoholic beverages is limited to: (1) hours of operation; (2) location of business; and (3) sanitary regulations. Clearly, the Tampa ordinance is not directed to any of the foregoing topics. However, in Nelson v. State, 157 Fla. 412, 26 So.2d 60 (1946), our supreme court construed the identical language as not limiting municipal regulation to these three areas of subject matter. In the face of a preemption argument, the Nelson court upheld an ordinance prohibiting the employment of females to serve liquor, a restriction which intrudes far more into the scheme of state regulation than the subject matter of ordinance 25-9. Hence, we cannot say that the subject matter of Tampa’s ordinance has been expressly preempted by state law. See also Board of County Commissioners v. Dexterhouse, 348 So.2d 916 (Fla.App.1977).

A state statute always prevails over a conflicting municipal ordinance. Rinzler v. Carson, 262 So.2d 661 (Fla.1972). Therefore, the final question is whether Tampa’s ordinance conflicts with state law. Respondent fails to point to any provision of the state beverage laws which is inconsistent with the Tampa ordinance. To require employees to register with the city does not restrict the circumstances under which alcohol may be sold, nor does it purport to regulate who may be employed to sell alcoholic beverages. If anything, an argument can be made that ordinance 25-9 serves to implement section 562.13(3)(a), Florida Statutes (1981), which prohibits licensed vendors from employing persons with criminal records as manager or bartenders. By requiring employees to register, the names of those with previous convictions may come to light.

We hold that the order determining City of Tampa ordinance 25-9 to be null and void is contrary to the essential requirements of law. We hereby grant certiorari and quash the order of the circuit court and direct that the order of the county court be reinstated.

OTT, C.J., and BOARDMAN, J., concur.

      . The balance of the ordinance requires the employees to register and be fingerprinted and photographed within forty-eight hours of their employment.

      . The ordinance was ultimately stricken as being unreasonable to women. Brown v. Foley, 158 Fla. 734, 29 So.2d 870 (1947).


author: GRIMES, Acting Chief Judge.

text:
    Michael MASELLI, Appellant, v. STATE of Florida, Appellee.
    No. 82-1091.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was charged with violating a condition of his probation which required him to live and remain at liberty without violating any law. At the hearing, the state introduced a certified copy of a judgment finding appellant guilty of uttering a forged instrument which was entered upon a plea of nolo contendere. The state then interrogated appellant concerning the crime, and he admitted that he had pled nolo contendere to the charge. He did not explain the details of his plea nor assert his innocence. The court revoked appellant’s probation.

Appellant contends that a judgment of guilt entered upon a nolo contendere plea constitutes an insufficient basis upon which to revoke his probation. He refers to Donaldson v. State, 407 So.2d 623 (Fla. 5th DCA 1981), in which a majority of the panel held that a probation revocation cannot be predicated solely upon a conviction entered pursuant to a plea of nolo contendere where the defendant maintains his innocence of the crime.

At the outset, we note that the facts of Donaldson are distinguishable. In Donaldson, the defendant asserted that he had pled nolo contendere pursuant to a plea bargain and that he had always maintained his innocence of the crime. Here, appellant made no explanation concerning his plea and never asserted that he was not guilty. However, we prefer to meet the issue head-on. With due respect, but without apology, we disagree with the majority opinion of our sister court in Donaldson. We prefer the reasoning of Judge Cobb in his dissent.

It is well settled that the conviction of a crime is a sufficient basis for a probation revocation. Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Demehak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968). The fact that the defendant may have pled nolo contendere does not detract from the legality of his conviction. Before a judge can accept a plea of nolo contendere, he must satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. Fla.R.Crim.P. 3.172(a). There may be many reasons why a defendant chooses to enter a plea of nolo contendere, but if a judgment of guilt is entered upon the plea we must assume that the conviction is valid unless it has been set aside. We do not suggest that in trying to convince the court not to revoke his probation a defendant should be precluded from asserting his innocence of the charge to which he pled nolo contendere. We hold only that the conviction, standing alone, is sufficient to sustain the court’s decision to revoke probation.

AFFIRMED.

SCHEB and LEHAN, JJ., concur.


text:
    Maurice C. BRYANT, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-360.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Maurice C. Bryant, in pro per.
    Earl H. Archer, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Sala v. Florida Parole and Probation Commission, 414 So.2d 263 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ. concur.


text:
    Orlando HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. AK-66.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although appellant was granted an opportunity to file a brief in proper person, he has not done so. After having reviewed the entire record we find no reversible error. However, there is a discrepancy between the orally announced sentence of three years and the written sentence of five years. Since this discrepancy apparently has not been brought to the attention of the sentencing court, we affirm the judgment and sentence appealed without prejudice to defendant to raise this alleged discrepancy in an appropriate motion for post-conviction relief. See Sanford v. State, 419 So.2d 1188 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Geraldine JONES, Appellee.
    No. AK-110.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

The State appeals a trial court order granting appellee’s motion to dismiss an information charging appellee with committing an aggravated battery. Appellee’s motion to dismiss alleged that an affidavit charging violation of probation had previously been filed charging, in language identical to that in the instant information, that she had violated her probation by committing the aggravated battery. The motion further recited that at the probation revocation hearing the court heard the testimony of the witnesses, and found that appellee had not violated her probation. The motion alleged that the subsequent criminal prosecution was barred by the doctrine of collateral estoppel. The trial court agreed and dismissed the information. We reverse.

Collateral estoppel applies against the State only after a defendant is put in jeopardy in the first proceeding. State v. McCord, 402 So.2d 1147 (Fla.1981); State v. Kling, 335 So.2d 614 (Fla. 2nd DCA 1976). Jeopardy attaches only when the defendant has been subject to the risks of a determination of guilt. Kling, at 616. Since appel-lee was not placed in jeopardy in the probation revocation hearing, she is not entitled to rely on the doctrine of collateral estoppel in the subsequent criminal prosecution.

REVERSED and REMANDED.

ERVIN and SHIVERS, JJ., concur.

      . The trial judge in this proceeding also heard and ruled on the probation revocation charge.

      . A probation revocation hearing is a sentencing function, not a trial. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Young v. State, 305 So.2d 307 (Fla. 3rd DCA 1974), cert. den. 317 So.2d 762 (Fla. 1975); McNeely v. State, 186 So.2d 520 (Fla. 2nd DCA 1966). Jeopardy occurs when a person is put upon trial under an indictment or information sufficient in form and substance to sustain a conviction before a court of competent jurisdiction, and a jury has been sworn and charged or the court begins to hear the evidence. See, State v. R.E.F., 251 So.2d 672 (Fla. 1st DCA 1971), affm’d 265 So.2d 701 (Fla.1972). Since appellee’s probation revocation hearing concerned only her sentence for a prior offense, she may not be said to have been put in jeopardy for the instant offense. Further, the trial judge’s refusal to revoke probation cannot be equated with an adjudication of the criminal charge, since the trial judge is vested with broad discretion to revoke, modify, or continue probation even if the charge is admitted or proved. Section 948.06, Florida Statutes.


text:
    Kenneth W. ROLLE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-317.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Kenneth W. Rolle, in pro. per.
    John C. Courtney, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    Larry G. GARVEY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-304.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Larry G. Garvey, pro se.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    James Stephen BUIE, Appellant, v. STATE of Florida, Appellee.
    No. AO-151.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    James Stephen Buie, in pro. per.
    No appearance for appellee.
   PER CURIAM.

The circuit court’s order denying appellant’s Fla.R.Cr.P. 3.850 motion without a hearing and without attaching and referring to portions of the record showing that appellant is not entitled to relief, is REVERSED. Grounds 1, 2, 8 and 14, pertaining to the voluntariness of appellant’s plea, and ground 13, pertaining to the effectiveness of his counsel’s assistance on the original plea and at the time of sentencing, are not on their face legally insufficient. The trial court is therefore directed to attach portions of the record conclusively refuting those allegations or to hold an evidentiary hearing on those issues.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    CECIL W. PERRY, INC., and General Accident Group, Appellants, v. Juan LOPEZ, Appellee.
    No. AJ-167.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1983.
    Randy Fischer of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeals an order of the deputy commissioner finding that the receipt and acknowledgment of a claim with the deputy commissioner is sufficient to toll the two-year statute of limitations even though, through no fault of the deputy commissioner, the claim was not received by the Division in its office in Tallahassee until after expiration of the limitation period. We reverse for the reasons stated herein.

Claimant suffered a compensable injury in August of 1977. The last date of remedial treatment was May 18,1979. On May 15, 1981, a claim for benefits was received by the carrier and the local deputy commissioner, who timely forwarded same to the Division at Tallahassee. The claim was not received by the Division until May 19, 1981, one day after the limitation period.

Section 440.19(l)(a) and (c), Florida Statutes (1977), are to be read in para materia as establishing both the time limitation and place of filing for statute of limitation purposes. See Thompson v. Alonzo Cothron, Inc., 5 FCR 347 (May 6, 1965). Section 440.19(l)(c) clearly mandates that the claim “shall be filed with the Division at its office in Tallahassee.” The only statutory exception is that which permits the tolling of the statute of limitations where a claim was received by the deputy commissioner, who thereafter failed to timely forward same to the Division. Sections 440.19(l)(d) and (e), Florida Statutes (1977). The facts of this case do not fall within that exception. Nor does the fact that the carrier received notice that the claim was being filed prior to expiration of the limitation period excuse compliance with the statute on the basis that the employer/carrier was not prejudiced. As stated by Professor Larson in his treatise on Workers’ Compensation § 78.30:

Failure to file a claim for compensation within the statutory period cannot be excused by an argument that the employer was not harmed by the lateness of the filing. Like any statute of limitation, this one carries a conclusive presumption that a defendant is prejudiced by reason of the enhanced difficulty of preparing a defense, (emphasis added)

Accordingly, the order of the deputy commissioner is reversed with directions to dismiss the claim.

MILLS, BOOTH and THOMPSON, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    Louis MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1742.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We relinquished jurisdiction to the trial court for the purpose of clarifying the agreement between the parties as to dispos-itiveness. See Martinez v. State, 420 So.2d 637 (Fla. 3d DCA 1982). The agreement has now been clarified to reflect that the defendant’s nolo contendere plea was entered with the understanding that the State would not further prosecute if both the defendant’s statement at the scene of the accident and his later statement at the sta-tionhouse were suppressed. Because it appears that the defendant was sufficiently alerted to the fact that the accident report phase of the investigation had ended when, after his arrest for manslaughter and vehicular homicide and after being given Miranda warnings, he gave the statement at the stationhouse, we conclude that his motion to suppress such statement was properly denied and affirm the judgments of conviction.

Affirmed.

BASKIN, Judge

(dissenting).

I abide by the views expressed in my dissenting opinion in Martinez v. State, 420 So.2d 637 (Fla. 3d DCA 1982) (Baskin, J., dissenting). If this court’s decision regarding any reserved issue would permit the state to proceed to trial, the questions presented are not dispositive, and we may not accept review. Brown v. State, 376 So.2d 382 (Fla.1979); Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (Baskin, J., dissenting); Furr v. State, 420 So.2d 341 (Fla. 3d DCA 1982) (Baskin, J., dissenting). The stipulation falls within the Brown prohibition. I would therefore decline review, permit Martinez to withdraw his plea, and allow the cause to proceed.


author: DANIEL S. PEARSON, Judge.

text:
    Donald J. WOLF, d/b/a Printing Plus, Appellant, v. Robert BUCHMAN, d/b/a Minit Print of Miami, Appellee.
    No. 81-803.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Britton, Cohen, Kaufman, Benson and Schantz and J. Robert Olian, Miami, for appellant.
    Richard A. Burt, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

This is an appeal from a final judgment in favor of Buchman, the plaintiff below. The judgment awarded to Buchman the possession of a Minolta copier pursuant to a writ of replevin, damages in the sum of $3,650, and attorneys’ fees.

In January 1980, Buchman and Wolf orally agreed that Buchman, beginning then, would lease a Minolta copier to Wolf for thirty-six months at a rental of $100 per month. From January to May, the copier was disabled on many occasions. Because Buchman advised Wolf that Minolta refused to service the copier because of a dispute about the amount owed by Buchman for the machine, Wolf had the copier repaired by another service company. Service was needed three or four times a month.

By June 1980, the copier was not working at all. Wolf demanded that Buchman refund the rental paid to date, a sum of $400. Buchman refused, but offered to terminate the lease upon Wolf’s return of the copier. Wolf advised Buchman that he would not return the machine until he was reimbursed for the amounts expended on repairs.

In September 1980, Buchman filed a complaint for replevin, a writ issued, and Buch-man took possession of the copier. In a second amended complaint, Buchman sought lost revenues under the lease of $3,200, the cost of repairing the copier which, he maintained, Wolf had damaged, and attorneys’ fees.

Wolf concedes that although the evidence as to which of the parties was responsible for the continued malfunctioning and poor condition of the copier was in dispute, there is evidence to support the trial court’s finding that Wolf was at fault. Since there is also sufficient evidence to show that the cost to repair the copier at the time it was’ returned to Buchman was $1,000, it follows that Buchman is at least entitled to that amount. Wolf further concedes that he was in possession of the machine for ten months before it was replevined and that, therefore, Buchman was entitled to $600 in accrued and unpaid rent. Wolf’s primary complaint on appeal is that the balance of the undifferentiated judgment of $3,650 is totally without support in the record. We must agree unless Buchman, as he contends, established his entitlement to payments under the lease agreement accruing after the machine was returned to him under the writ of replevin. Wolf’s second point is that an award of attorneys’ fees under Section 57.105, Florida Statutes (1979), was totally unjustified.

A lease, whether of real or personal property, may create or defeat the right to the value of the lease as damages even upon return of the property. See Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., 464 F.2d 267 (5th Cir.), cert. denied sub nom., Florida-Vanderbilt Development Corp. v. Chandler Leasing Division; Pepsico Service Industries Leasing Corp., 409 U.S. 1041, 93 S.Ct. 527, 34 L.Ed.2d 491 (1972). In Chandler Leasing, the parties entered into a nine-year lease of a yacht. Nine months later, the lessee ceased making payments and notified the lessor that it was terminating the lease because of an electrolysis problem. The lessor sought and obtained a judgment of replevin. Thereafter, the lessor brought suit to recover damages in accordance with the provisions of the lease, namely, all future rental payments less the price received by it at the public sale of the yacht. The lessee defended on the theory, inter alia, that the lessor’s damages were limited to accrued rental payments in default. The trial court agreed with the lessee and entered summary judgment in its favor. The Fifth Circuit reversed, holding that since the lease specifically provided that the lessee remain liable for all rents upon default, the lessor’s repossession of the property was no bar to an action for post-possession rents.

Construing Florida law, the Fifth Circuit rejected the lessee’s argument that our decisions in Cutler Gate Building Corp. v. United States Leasing Corp., 165 So.2d 207 (Fla. 3d DCA 1964), and Monsalvatge & Co. of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3d DCA 1963), establish a per se rule that once the property under a lease is returned to the lessor, only the rentals in default at that time may be recovered as damages. Said the court:

“[Cutler Gate and Monsalvatge ] cannot be interpreted to lay down the per se rule that irrespective of whatever contractual damage provision the parties have agreed upon, only rentals in default [can be] recovered. Such a rule would not only conflict with the right of contracting parties to obligate themselves as they wish, but it would also be inconsonant with sound reason. Under so absolute a rule, lessees could breach lease agreements with impunity knowing that they would be liable only for the payments in default, and lessors on the other hand would never know when the property would be returned and in what condition. Such intolerable conditions would so seriously impair the commercial viability and efficacy of lease transactions that they would forestall or inhibit the negotiation of commercially valuable lease agreements.” 464 F.2d at 270.

We agree with Chandler Leasing that no such per se rule exists and conclude, therefore, that Buchman’s recovery of the copier did not ipso facto preclude him from recovering prospective rental payments under the lease. But the absence of a per se rule does not mean, conversely, that Buchman was entitled to recover these prospective rental payments.

The parties concede that the oral lease agreement here went no further than providing for the amount of monthly rent and the term of the lease. No agreement was reached, or discussion had, as to the liability of the lessee for the remainder of the rent in the event the property was returned to the lessor before the expiration of the term of the lease, or the rights or obligations of the lessor in that event. We cannot then, as did the court in Chandler Leasing, determine from the bare-bones lease agreement whether the lessor was entitled to recover prospective rental payments after recovering the property.

Where, as here, the remedy available to a lessor when his lessee breaches a lease agreement cannot be found in the lease itself, we must look to the case law for the available remedies. Chandler Leasing Division, Pepsico Service Industries Leasing Corp. v. Florida-Vanderbilt Development Corp., supra. In Stenor, Inc. v. Lester, 58 So.2d 673, 676 (Fla.1951), the Supreme Court held that upon the breach of a lease, a lessor has three remedies available. He may:

“treat the lease as terminated and resume possession of the premises, thereafter using the same exclusively as [his] own for [his] own purposes; or
“[retake] possession of the premises for the account of the lessee, holding the lessee in general damages for the difference between the rentals stipulated to be paid and what in good faith [the lessor is] able to recover from a reletting; or “[stand by and do] nothing, and [sue] the lessee as each installment or rent mature^], or for the whole when it [becomes] due.”

Holding that the lessor’s conduct amounted to an election to pursue the first of the foregoing alternatives, the court went on to say:

“Consequently, having made such election it could not thereafter, like the proverbial chameleon, change color and hold the lessee liable for the difference in the amount of rental stipulated in the lease and the amount which appellee might receive upon a reletting.” 58 So.2d at 676.

Where, however, it is not clear from the lessor’s actions that he has elected one of the available remedies to the exclusion of another, a finding of an election will be set aside, and the cause remanded for the taking of further evidence bearing on that issue. See Ranter v. Safran, 68 So.2d 553 (Fla.1953).

In the present case, the copier was turned over to Buchman pursuant to the writ of replevin on October 9, 1980. The case was tried nearly four months later on January 27, 1981. The only testimony of Buchman relevant to his efforts to re-lease the property was this:

“Q: Since you have had the copier returned to your possession, have you attempted to lease the copier to someone else?
“A: Yes.
“Q: And what efforts have you undertaken to find a new lessee?
“A: Well, we have talked to people from the various companies that repair the machines. We have talked to people in the building. We have not advertised it in the newspaper, but probably will.
“Q: And have you been able to lease the copier?
“A: Not yet.”

While, generously viewed, this testimony might be said to evince Buchman’s intent to re-lease the property, there is not the slightest evidence to show that he intended to re-lease the property for the benefit of the lessee. Compare Kanter v. Safran, Inc., supra (where lessor advised lessees that if compelled to retake possession of the premises, they would relet for the account of the lessee), with Hyman v. Cohen, 73 So.2d 393 (Fla.1954) (election by lessor to retake premises for own use found where lessor at no time advised lessee that retaking was for account of lessee). Yet the law is clear that a lessor’s right to hold the lessee in general damages for the difference between the rentals to be paid and what, in good faith, the lessor is able to recover by reletting the property to another is contingent on his demonstrating an intent to relet for the benefit of the lessee. Stenor, Inc. v. Lester, supra; Kanter v. Safran, supra. While the issue of the lessor’s intent is obviously one of fact for the fact-finder, Hyman v. Cohen, supra; accord, Diehl v. Gibbs, 173 So.2d 719 (Fla. 1st DCA 1965), where there is no fact to support a finding that the lessor’s intent was to relet for the benefit of the lessee, the finding cannot stand.

We decide, therefore, that the evidence in the present case is susceptible of only one conclusion — that is, that the lessor treated the lease as terminated by retaking the property as his own and for his own purposes rather than for the account of the lessee. Thus, the lessor was not entitled to an award of damages for rent which was to come due after he retook possession of the property. Since except for $1,600 the amount of the trial court’s judgment is either attributable to such prospective rent or nothing at all, the judgment must be reduced to $1,600, consisting of the rent due and unpaid at the time the copier was repossessed and the cost of its repair. We hold further that the award of attorneys’ fees under Section 57.105 was totally unjustified.

The judgment is affirmed as modified; the order taxing attorneys’ fees in the sum of $4,000 is reversed.

      . Wolf counterclaimed for the cost of replacing the machine. The denial of that counterclaim is not an issue on appeal.

      . Neither party has adequately explained how the court arrived at the figure of $3,650. If that figure includes rent accruing after repossession, such rent would be for twenty-six months or $2,600, which when added to past due rent and cost of repair would make the judgment $4,200. If the $3,650 does not include such prospective rent, then it exceeds the proved damages of $1,600 by $2,050.

      .While one employing a writ of replevin has the option of recovering the property or its value, but not both, see § 78.19, Fla.Stat. (1981); Roche v. Barbaro, 378 So.2d 1334 (Fla. 4th DCA 1980); Rood v. Miami Air Conditioning Co., 193 So.2d 216 (Fla. 3d DCA 1966), the exclusivity of one or another of these remedies has nothing whatever to do with remedies available under the lease.

      . This rule apparently originated in Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944), although Williams is not cited in Stenor, Inc.


text:
    Salvador AROCHA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1669.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Bennett H. Brummer, Public Defender and Elizabeth R. Read, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Lisa M. Ber-low-Lehner, Legal Intern and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant and a codefendant were convicted of second-degree murder. The code-fendant’s conviction was affirmed. Barbon-Zurita v. State, 415 So.2d 824 (Fla. 3d DCA 1982). The contentions here are (1) the trial court should have modified a pretrial stipulation and declared a mistrial, sua sponte, when injustice became apparent, (2) the court’s denial of appellant’s request that counsel for codefendant be instructed to refrain from commenting on the fact that appellant had not testified effectively penalized appellant for exercising his right to remain silent, (3) appellant’s motion for judgment of acquittal should have been granted where the proof of intent to commit murder rested solely upon circumstantial evidence.

The parties entered into a stipulation for a joint trial with the following condition:

[Appellant’s counsel] “. .. should one of the defendants testify and the other one not testify, that the defendant that testifies may bring to the attention of the jury that he did, in fact, testify, although the attorneys are agreeing that they will not point the finger to the other defendant and say he did not testify.”

Appellant argues that the codefendant breached the terms of the agreement by making a direct comment on his decision to not take the witness stand. Even if we could agree, there was not a contemporaneous objection when the comment was made, thus, the point has not been properly preserved for appellate review. Clark v. State, 363 So.2d 331, 335 (Fla.1978); Simpson v. State, 418 So.2d 984 (Fla.1982). Nor will appellant be heard to complain that the trial court should have granted a mistrial, sua sponte, where he not only failed to move for a severance but objected to a state motion, made during trial, that the two defendants be tried separately. See Barbón-Zurita v. State. The third point, which challenges the sufficiency of the evidence, is totally without merit.

Affirmed.


author: FERGUSON, Judge. BASKIN, Judge

text:
    Ramona JAKUBCZAK, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2350.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.

      Samek & Besser and Lawrence Besser, Miami, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant and her husband were charged with aggravated child abuse in violation of Section 827.03(1) and (2), Florida Statutes (1979). The three-count information alleged:

Count I
. . . David Allen Jakubczak II and Ramona Jakubczak ... by act, ommission [sic] or neglect did cause unnecessary and unjustifiable pain or suffering upon David Allen Jakubczak III, an infant under the age of eighteen (18) years, to-wit: contusions about the face and head and bleeding in the left eye, in violation of Florida Statute 827.03(2).
Count II
... David Allen Jakubczak II and Ramona Jakubczak ... by act, ommission [sic] or neglect did cause unnecessary and unjustifiable pain or suffering upon David Allen Jakubczak III, an infant under the age of eighteen (18) years, to wit: three (3) fractures of the skull and internal bleeding, in violation of Florida Statute 827.03(2).
Count III
... David Allen Jakubczak II and Ramona Jakubczak ... did unlawfully and knowingly commit aggravated battery upon David Allen Jakubczak III, by intentionally and knowingly causing great bodily harm, permanent disability, or permanent disfigurement to said David Allen Jakubczak III, an infant under the age of eighteen (18) years, to wit: three (3) fractures of the skull and internal bleeding, in violation of Florida Statute 827.03(1).

At the close of the state’s case the trial court granted appellant’s motion for a judgment of acquittal as to count III. On the charge in the first count of the information, the jury found the defendant guilty of a lesser included offense of child abuse — a violation of Section 827.04(2), Florida Statutes (1979). On the second count the jury found the defendant guilty of aggravated child abuse. Appellant was sentenced to seven years imprisonment on the second count and one year imprisonment on the first count, the sentences to run concurrently-

There is no legal insufficiency of the evidence which requires reversal of the conviction on the lesser included offense of child abuse. Tibbs v. State, 397 So.2d 1120 (Fla. 1981), aff’d, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A jury could reasonably have found appellant guilty of child abuse by an act of omission or culpable negligence from the fact that she left the nine-week old child with her husband (who was also convicted) knowing that he was often not in control of his mental faculties because of an abuse of alcohol or drugs, and also knowing that the infant had previously suffered serious injuries — not self-inflicted — while in the exclusive care and custody of the husband. Alternatively, the jury could have found the defendant’s failure to seek prompt medical attention for the injured child an act of negligent abuse.

' We reverse the conviction for aggravated child abuse as charged in the second count of the information. The trial court properly granted the defendant’s motion for a judgment of acquittal as to the third count of the information expressly because the state failed to produce sufficient evidence that the appellant, rather than her husband, had actually inflicted the injuries which led to this prosecution. Our review of the record supports that determination.

A plain reading of section 827.03(2) as compared to section 827.04, as well as the history of the statutes, leads us to conclude that the legislature intended to punish under section 827.03 only acts of commission done with specific intent. Sections 827.04 (child abuse) and 827.05 (negligent treatment of children) expressly provide that there can be a conviction for failure to do something which is required to be done; section 827.03 does not. What is now section 827.03 was amended in 1965 to substitute “willfully with malice, wantonly, or unlawfully” in the place of “willfully, unlawfully or negligently” as a description of the offenses, [e.s.] At the same time the penalty was increased. See Historical Note, West’s F.S.A. § 827.03 (1976). Because the record is devoid of sufficient evidence, circumstantial or otherwise, to establish willful acts of commission by appellant, as the court found in entering judgment of acquittal on count III, and because section 827.03 is not violated by acts of negligence, judgment of acquittal should have been entered on Count II as well.

Affirmed in part; reversed in part, and remanded with instructions to enter an acquittal on the charge of aggravated child abuse.

BASKIN, Judge

(concurring in part, dissenting in part).

I disagree with the majority holding that only acts of negligence, insufficient to establish malice under section 827.03(2), Florida Statutes (1979), were proved with regard to Mrs. Jakubczak. The jury found Mrs. Jakubczak guilty of child abuse as a lesser included offense of count I. The evidence was sufficient to support a determination that Mrs. Jakubczak’s conduct in leaving her child with her husband constituted a willful act under count II in light of testimony that, on previous occasions, Mr. Ja-kubczak had inflicted injuries upon the nine-week-old infant and that Mrs. Jakub-czak assisted in concealing those injuries. I would affirm the convictions.

      . Prior to trial the defendant’s husband pleaded guilty to one count of child abuse.

      . § 827.04(2), Fla.Stat. provides:
      Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, permits physical or mental injury to the child, shall be guilty of a misdemeanor of the first degree. ...

      .The words “omission” and “neglect”, as used in counts I and II of the information to describe the offenses which allegedly constitute violations of Section 827.03, Florida Statutes (1979), do not appear in the statute. The statute provides, in pertinent parts:
      827.03 Aggravated child abuse. — Whoever:
      (1) Commits aggravated battery on a child;
      (2) Willfully tortures a child;
      (3) Maliciously punishes a child; or
      (4) Willfully and unlawfully cages a child
      shall be guilty of a felony of the second degree ....

      . See n. 2, supra.

      . § 827.05, Fla.Stat. provides:
      Whoever, though financially able, negligently deprives a child of, or allows a child to be deprived of necessary food, clothing, shelter or medical treatment or permits a child to live in an environment, when such deprivation or environment causes the child’s physical or emotional health to be significantly impaired or to be in danger of being significantly impaired shall be guilty of a felony of the third degree....


text:
    Patricia JOHNSON, Renee Evans and Industrial Fire and Casualty Insurance Company, Inc., Appellants, v. Luedell GREEN, Appellee.
    Nos. 81-2420, 81-2741 and 82-391.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Goodhart & Rosner, Jeanne Heyward, Miami, for appellants.
    Jones & Zaifert, Richard Zaifert, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Because the trial court erroneously declined to instruct the jury that it should deduct the p.i.p. benefits paid the plaintiffs, Sec. 627.736(2), Fla.Stat. (1977), the $51,000 judgment against the defendants Johnson and Evans shall be reduced by $4,000, the amount of those benefits, to $47,000. The appellants’ remaining points are patently without merit, and the judgments on review are therefore otherwise entirely affirmed.

Affirmed as modified.


text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO OF the STATE OF FLORIDA, Appellant, v. CARL & MIKE, INC., d/b/a Rawhide Bar, Appellee.
    No. 81-2472.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Harold F.X. Purnell, Tallahassee, for appellant.
    Henry A. Amoon, Miami, for appellee.

      Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

This is an interlocutory appeal from a non-final order entered below granting a preliminary injunction against the enforcement of a certain administrative emergency order entered by the defendant Department of Business Regulation, Division of Alcoholic Beverages & Tobacco. The emergency order temporarily suspends, pending a full hearing, the plaintiff Carl & Mike, Inc.’s liquor license based on a showing of extensive illegal drug sale activity on the plaintiff’s licensed bar premises. Upon a prior direct appeal here from that order, this court denied the plaintiff’s application for a stay pending appeal. Several days after this court’s ruling on the application for stay, the subject lawsuit was filed below seeking virtually the same injunctive relief although based on the newly raised ground that Section 120.60(7), Florida Statutes (1982), authorizing the emergency order of suspension, was unconstitutional. We conclude that in view of this court’s prior ruling denying an application for stay, the circuit court may not now overrule, in effect, this court’s prior order denying a stay by entertaining the instant lawsuit and entering the subject preliminary injunction. DuBusk v. Smith, 390 So.2d 327 (Fla.1980).

We recognize that no constitutional challenges were raised by the plaintiff Carl & Mike, Inc. in the application for a stay before this court while certain constitutional challenges are now made in the suit below. That cannot, however, change the result in this case. The plaintiff Carl & Mike, Inc. was not precluded from raising the appropriate constitutional challenges to Section 120.60(7), Florida Statutes (1982), in the appeal before this court and in the corresponding application for stay. Rice v. Dept. of Health & Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). It cannot now seek to overrule our decision on the application for stay by filing the instant lawsuit below with its newly-raised constitutional grounds. Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982).

The preliminary injunction under review is, accordingly, reversed and the cause is remanded to the trial court with directions to dismiss the instant lawsuit.


text:
    Pablo HERNANDEZ and Pedro Camejo, Appellants, v. The STATE of Florida, Appellee.
    Nos. 81-2506, 81-2515.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Bennett H. Brummer, Public Defender, Thomas Sherouse, Steven E. Kreisberg and Mark Alan LeVine, Sp. Asst. Public Defenders, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Affirmed. Daizi v. State, 396 So.2d 1160 (Fla. 3d DCA 1981); Miller v. State, 403 So.2d 1017 (Fla. 5th DCA 1981); Melero v. State, 306 So.2d 603 (Fla. 3d DCA 1975); Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971); Ray v. State, 403 So.2d 956, 961 (Fla.1981); see Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981).


text:
    Jose Manuel IZQUIERDO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2619.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Bennett H. Brummer, Public Defender, and Arthur L. Rothenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Scott A. Silver, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Jones v. State, 360 So.2d 1293, 1296 (Fla. 3d DCA 1978); Davis v. State, 264 So.2d 31 (Fla. 3d DCA 1972).