text:
    STATE of Florida, Appellant, v. Randy Mark FILTER, Appellee.
    No. 81-2312.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Robert C. Hill of Law Offices of Engel, Chlipala & Hill, Fort Myers, for appellee.
   PER CURIAM.

The state appeals from an order suppressing physical evidence seized from appellee’s vehicle. We affirm.

After stopping appellee’s vehicle and arresting appellee, police searched the interior of the vehicle. The officer described the search as a standard inventory procedure pursuant to impoundment, and further testified that he did not advise appellant that there were alternatives to impoundment. The inventory produced methylphenidate, for which appellee was charged with illegal possession under chapter 893, Florida Statutes (1979).

When an arresting officer intends to impound a vehicle, the police must advise the owner or possessor of that vehicle that the vehicle will be impounded unless the owner or possessor can provide a reasonable alternative to impoundment. Miller v. State, 403 So.2d 1307 (Fla.1981); Sanders v. State, 403 So.2d 973 (Fla.1981). On appeal, the state argues that the search may be justified as pursuant to appellee’s arrest. Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981). We hold that the facts below support the lower court’s finding that the search was an inventory search pursuant to impoundment and that no alternatives to impoundment were permitted. The resulting contraband must thus be suppressed, pursuant to Miller v. State, supra, and Sanders v. State, supra.

AFFIRMED.

RYDER, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PIEZO TECHNOLOGY and Professional Administrators, Inc., and Old Republic Ins. Co., and Southern Fire Adjusting Co., Appellants, v. Geraldine SMITH, Appellee.
    No. ZZ-27.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Bernard J. Zimmerman and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   ON SUGGESTION FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

Upon suggestion by appellee and, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), the decision in this case, 413 So.2d 121 is certified to the Supreme Court as presenting the following questions of great public importance:

1. WHETHER § 440.205, FLORIDA STATUTES (1979) CREATES A CAUSE OF ACTION FOR A “WRONGFUL DISCHARGE” IN RETALIATION FOR AN EMPLOYEE’S PURSUIT OF A WORKERS’ COMPENSATION CLAIM;
2. IF § 440.205 DOES CREATE A CAUSE OF ACTION FOR “WRONGFUL DISCHARGE,” WHETHER SUCH ACTION IS COGNIZABLE BEFORE A DEPUTY COMMISSIONER;
3. IF § 440.205 DOES CREATE A CAUSE OF ACTION FOR “WRONGFUL DISCHARGE,” BUT SUCH ACTION IS NOT COGNIZABLE BEFORE A DEPUTY COMMISSIONER, WHETHER SUCH ACTION IS COGNIZABLE IN THE CIRCUIT COURT.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


author: McCORD, Judge.

text:
    Marge E. GLENNON, Appellant, v. EAST BAY COUNTRY CLUB and Aetna Life & Casualty, Appellees.
    No. AF-162.
    District Court of Appeal of Florida, First District.
    June 8, 1982.

      Maureen Emmet-Miller of Watson, Gold-stein, Douglass & Dubbeld, St. Petersburg, for appellant.
    Barbara J. Paulson of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellees.
   McCORD, Judge.

Claimant appeals from a workers’ compensation order denying her claim for wage-loss benefits subsequent to April 16, 1980. We conclude that the deputy commissioner erred in failing to find that the claimant had met the burden of establishing that her wage loss was the result of her compensable injury. § 440.15(3)(b)2, Fla. Stat. (1979). We, therefore, reverse.

Claimant is a 43-year-old woman who was employed as a cook and assistant to the chef. On November 22,1979, she slipped in a puddle of water at the employer’s place of business and fell, injuring her back. As a result of this injury, she sustained a 5% permanent partial disability to the body as a whole and reached maximum medical improvement on March 3, 1980. Claimant subsequently found a job as a prep person and cook for the Sunshine Letter Carriers’ Hall in April of 1980. The hours for this job were shorter than her previous position; however, she was required to lift heavier boxes and items. This routine resulted in constant back pain and numbness in her legs. When she went back to her treating physician, Dr. Crespo, in January of 1981 and told him of her problems, he advised her to terminate that employment and find something that would not deal with any lifting whatsoever. Indeed, Dr. Crespo testified that she should restrict her work so as to avoid heavy lifting and standing for long periods of time.

After taking a month off, she went to the Florida State Employment Service and asked for jobs where she would be sitting and not standing. After having made approximately fifteen job applications, she found part-time work as a dietary aide for the Shore Acres Nursing Home. Her duties there were to help prepare foods for the patients, help set up the dining room for patients that were able to come to the dining room, and place food on the trays for those patients who could not do so. Having been asked by her employer to try for cook, she did so and garnered the job. This continues to be her present position, and she works approximately thirty seven and one-half hours per week. Nevertheless, she still experiences pain in her back and numbness in her legs. Further, she takes the drug Motrin to assist her in coping with the pain during the day.

Upon these facts, the deputy made a specific finding, with which we agree, that the claimant conducted “genuine and sincere efforts to find employment” subsequent to the date of maximum medical improvement but still denied her claim for the reason that she has performed, and is performing, duties that were essentially the same as those performed for her previous employer. This is true, but the deputy commissioner ignores one crucial fact, i.e., that the claimant cannot work the same amount of hours as she was able to prior to her compensable injury. Claimant herself feels that she is unable to work more than thirty seven and one-half hours per week due to her lingering back condition. Standing alone, this testimony might not persuade us to reverse the deputy’s order. However, as noted previously, Dr. Crespo, an orthopedic physician, also felt that she should restrict her work so as to avoid heavy lifting and standing for long periods of time. Since the duties of a cook inherently involve long periods of standing, the uncontroverted testimony of claimant and Crespo reveals that her shortened amount of work hours is directly a result of her compensable injury. Therefore, since her pre-injury work hours were much more substantial, up to sixty hours per week with time and a half for overtime, we agree with the claimant’s contention that she has proven her wage loss is the result of her compensable injury. § 440.-15(3)(b)2, Fla.Stat. (1979).

Accordingly, we REVERSE the deputy commissioner’s order and REMAND for reconsideration of the claimant’s entitlement to wage-loss benefits in light of this opinion.

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


author: LARRY G. SMITH, Judge.

text:
    The EXCEPTIONAL CHILDREN’S HOME & NURSERY, INC., and Insurance Company of North America, Appellants, v. Madeline FORTUNA, Appellee.
    No. AF-175.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    H. George Kagan, Miller, Hodges & Ka-gan, Miami, for appellants.
    Mark J. Feldman, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal an order awarding claimant attorney’s fees pursuant to Section 440.34(2), Florida Statutes (1979). The deputy commissioner determined that the carrier’s handling of the claim was improper in four separate instances: (1) the carrier delayed too long the payment of claimant’s hospital bill in the amount of $19,569.76; (2) the carrier delayed too long the payment of attendant care services performed by the claimant’s mother on her behalf; (3) the carrier delayed too long the authorization for claimant’s admission to a pain clinic; and (4) the carrier was guilty of bad faith in adjusting downward the claimant’s compensation rate by a total of $2.66 per week for an eight week period from November 6, 1979, through January 3,1980. The carrier urges on appeal that the purported delays were not unreasonable under the circumstances and that the adjustment of the compensation rate, accomplished only after the carrier had made an independent investigation, was the result of an honest error based upon documentary evidence capable of disparate interpretations. We agree and reverse.

Initially, we would point out that the deputy’s order does not indicate under which provision of Section 440.34(2) the attorney’s fees were awarded in the first three instances. Clearly they were not awarded under Section 440.34(2)(c) since the carrier admitted compensability and paid some benefits. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Claimant’s lawyer argued below that fees were awardable under either Section 440.-34(2)(a) or (b). However, on appeal he appears to have retreated from the position that the award of fees with respect to items (2) and (3) above was based on the bad faith provision, Section 440.34(2)(b), and insists that Section 440.34(2)(a) is the basis for the award in these instances. This position is untenable.

Under Section 440.34(2)(a), a claimant can recover a reasonable attorney’s fee from a carrier or employer against whom he has successfully asserted a claim for medical benefits only, if the claimant has not filed or is not entitled to file a claim for disability or certain other benefits. Here, in the claim for the hospital bill filed with the Division on October 30, 1979, and the amended claim filed November 9, 1979, claimant claimed temporary total disability benefits were due from September 4, 1979 to date. Although the record indicates these benefits were paid, this claim was never withdrawn. Thus, claimant is not entitled to an attorney’s fee under Section 440.34(2)(a). Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982).

Although there is some confusion as to the extent of the claimant’s reliance upon the bad faith provision, the carrier argued on appeal that the deputy’s order impliedly found the carrier guilty of bad faith in each of the four instances outlined above. In this posture of the case, if we agreed with the carrier’s contention and found the evidence sufficient to support a finding of bad faith across the board, we would be compelled to affirm the order appealed. We have therefore undertaken a review of the evidence adduced at the hearing below (which was confined to the attorney’s fees issue) and, in considering the evidence in the light most favorable to the claimant, we have considered each of the instances of alleged improper handling in isolation, as well as in relation to each other, to determine whether the record justifies a finding of bad faith. We conclude that it does not.

We first revert briefly to this court’s view of the bad faith provision, Section 440.34(2)(b), as explicated in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In that case, this court recognized an employee’s right to receive benefits with reasonable promptness. However, balanced against that right, is the employer/carrier’s right to make a reasonable investigation regarding liability, and to have a reasonable opportunity to comply with the demands made, depending upon the exigencies of the particular request and the statutory duties and obligations pertinent to it. Based upon our review of the four episodes of alleged mishandling outlined in the deputy’s order, in the light of the discussion contained in Florida Erection Services, we are compelled to hold that the carrier’s conduct here, although perhaps not a model for the industry, is lacking in the display of unreasonableness required for a showing of malice, oppression, or willful, wanton, or reckless disregard of the rights of the claimant.

With respect to payment of the hospital bill, claimant was injured on September 4, 1979 and was hospitalized for approximately one month. Sometime thereafter, the hospital sent the itemized bill and a summary of the bill to the claimant’s attorney at his behest. On October 22, claimant’s attorney mailed a copy of the summary of the bill to the carrier. He did not forward to the carrier a copy of the itemized bill. On October 25,1979, claimant’s attorney mailed a claim for payment of the hospital bill which was filed with the Division on October 30, 1979. The carrier delayed the payment of this bill, and instead, asked the hospital to furnish an itemized statement. At the same time, the carrier wrote claimant’s attorney acknowledging receipt of the summary and advising that an itemized bill was being requested. On November 9, the carrier received a response from the hospital indicating that it was in the process of preparing and would shortly forward to the carrier a copy of the itemized bill. On November 26, the carrier received from the hospital the same summary bill that had been previously furnished to the carrier by claimant’s counsel. Rather than delay payment any longer, the carrier paid the hospital bill on December 5, 1979.

The deputy reasoned that since the carrier paid the second summary bill, although it contained the same information as the first bill, the carrier had delayed unreasonably long in waiting thirty-six days after the claim had been filed to pay the bill and thus claimant’s counsel was entitled to a fee based on the entire amount of the bill. With this, we must respectfully disagree. The carrier demonstrated at the hearing before the deputy that it routinely, as a cautionary measure, requested itemized bills, particularly large ones (this one amounted to nearly $20,000.00), based upon its experience that such bills often contain error (a fact recognized by the deputy). It was the carrier’s practice to submit such bills to a computer service for analysis. Thus, instead of being a “delaying tactic,” the procedure followed here was consistent with sound business practice. Notwithstanding this, the fact that the carrier ultimately paid the hospital bill based on the summary, without waiting for the itemization, may tend to cast doubt on the good faith of the carrier’s actions in the first instance. However there are other factors involved in this controversy which would preclude a finding of bad faith.

Section 440.13(1) requires that hospital bills be forwarded to the employer or carrier within ten days. Board of County Commissioners of Dade County v. Southern Florida Sanitary and Hospital Corporation, 173 So.2d 131 (Fla.1965). This was not done here because claimant’s counsel had the bill sent to him, which in itself tended to frustrate the self-executing design of the worker’s compensation law, and contributed to the delay he claimed to be so unreasonable. It was not unreasonable for the carrier to request a copy of the itemized bill, and at the time the carrier requested the itemized bill from the hospital, the claimant’s attorney actually had an itemized bill in his file, yet he did nothing toward providing this information to the carrier. His only explanation for failure to send the itemized bill to the carrier was — “it was too bulky.” The delay in payment, even assuming it to be unreasonable, cannot be attributed entirely to the carrier.

Next we consider the attendant care services provided to the claimant by her mother at home during the period of October 6, 1979 to November 20, 1979. Claimant’s lawyer filed a claim for payment of these services November 20, 1979. On November 30, claimant’s lawyer sent a letter to the carrier’s claims representative enclosing a copy of a letter from Dr. Millheiser, claimant’s treating physician, indicating that claimant needed a homemaker to assist her. In the letter, claimant’s lawyer asked the representative to contact him regarding payment for the services. This letter was received on December 3. Four days later the representative called claimant’s attorney, but the attorney was not in and a message was left. The call was returned on December 12. At that time the parties attempted to arrive at a fee for the mother’s services. After contacting a nurse’s aide registry, the claims representative called claimant’s attorney that same day with what the carrier believed to be a reasonable figure for the services, but again claimant’s attorney was not in, and again a message was left. Claimant’s attorney returned the call on December 21, and the parties agreed upon a fee of $25.00 per day for the mother’s services. The agreed reimbursement was paid in lump sum thirteen days later on January 3, 1980. Upon these facts, the deputy determined that the time taken by the carrier to pay for the nursing services was unreasonably long (thirty-five days from the filing of the claim), and entitled claimant’s attorney to a fee.

The carrier’s liability for nursing services in this case did not begin until it received notice of a request for these services, since there were no compelling circumstances to impute knowledge to the carrier of the claimant’s need for such services. Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980). The claim for nursing services was filed on November 20 and was followed by a letter from claimant’s lawyer on November 30. Thus, the operative point in time, for purposes of determining whether the carrier made a diligent effort to investigate this claim, is the latter part of November when the claim was filed and the carrier received the letter from claimant’s lawyer containing Dr. Millheiser’s recommendation. It is noteworthy that this letter contained no information concerning the hours, rates, or duration of the services for which payment was being sought. To that end, the carrier within a reasonable period of time contacted claimant’s attorney in an attempt to resolve the claim. There was a period of communications between the parties and then the claim was paid in full on January 3, 1980. While we agree that excessive and unreasonable delays by the carrier in communicating with claimant’s counsel may conceivably amount to bad faith, the circumstances here do not approach those limits.

Nor do the circumstances approach such limits when we examine the carrier’s alleged unreasonable delay in authorizing a pain clinic. On April 8, 1981, the carrier’s claims representative called Dr. Millheiser about another matter and was advised by the doctor’s secretary that treatment at a pain clinic was being recommended. The carrier was concerned about this recommendation since it was at odds with an earlier report of Dr. Millheiser which suggested an imminent return to work release for this claimant. On April 10, there was a conversation between the claims representative and claimant’s attorney at which time there was some discussion about getting a second medical opinion. On April 13, a claim for treatment at the pain clinic was filed. On April 16, the claim’s supervisor spoke to Dr. Millheiser personally and learned that Dr. Millheiser had made this recommendation because he could find no organic basis for claimant’s continuing complaints. On May 1,1981, the carrier authorized treatment at the pain clinic. Under the circumstances, it is our view the carrier conducted a reasonable investigation, and the delay of eighteen days in granting authorization, although excessive, cannot alone be said necessarily to constitute bad faith.

Finally, we turn to the fourth item for which a fee was awarded. The carrier initially established a compensation rate of $185.90, based upon the employer’s first report of injury. Late in October, the carrier received the formal wage statement which suggested a lower compensation rate of $183.24. In the meantime, the claims representative visited claimant’s place of employment and examined the payroll records. These too indicated that the reduced compensation rate was correct. Consequently, on November 6, 1979, the carrier lowered the compensation rate to $183.24, a difference of $2.66. In reality, the wage statement upon which the carrier relied was in error. It erroneously indicated that claimant worked and was paid for seven days, instead of ten days, during a two week period, when in actuality claimant had taken three days of personal leave for which she was later paid. Ignorant of this, the carrier initially took no action to readjust the compensation rate, relying instead on its earlier investigation. However, the claims representative did subsequently call the employer’s comptroller, learned of its error, and promptly returned the compensation rate to the original figure of $185.90 on January 3, 1980. Because the carrier did not call the comptroller to verify the downward adjustment until January 2, 1980, the deputy found that the adjustment was not investigated or decided with any reasonable care by the carrier, and concluded that the carrier’s conduct amounted to oppression as well as wanton and reckless disregard for the rights of the claimant constituting bad faith. He therefore awarded claimant’s counsel a fee on those benefits. Again we find the circumstances do not justify a finding of bad faith.

Here, the carrier acted with reason in fixing the original compensation rate, and in lowering it upon the receipt of other information. It made an investigation by actually visiting the claimant’s place of employment. The information received seemed to verify the lower rate, but in fact it apparently was misinterpreted. These actions do not represent oppressive conduct or wanton or reckless disregard for the claimant’s rights. There is no hint of intentional delay or disregard for the claimant’s rights, and certainly no “passive disapproval and rejection ... on mere technical matters of form,” Florida Erection Services, supra, 395 So.2d at 211.

We recognize that in Florida Erection Services we vested a broad discretion in the deputy commissioner, when making a determination of bad faith, to measure actions of the carrier in light of his judgment, experience and knowledge. Ordinarily, his determination with respect to bad faith will not be disturbed absent a clear abuse of discretion or departure from the essential requirements of law. Acevedo v. Ampco Products Company, 407 So.2d 376 (Fla. 1st DCA 1981). Our reversal in this case does not represent a retreat in any respect from the principles formulated in prior decisions. We caution also that our somewhat detailed recitation of the facts, particularly of dates and times, is not intended to convey either approval or disapproval of any specific time-frame for actions by the employer/carrier not regulated by statute or rule. As this and other cases on the subject illustrate, bad faith (or the absence of it) for attorney’s fees purposes, cannot be reduced to a matter of counting days.

The order appealed is REVERSED.

MILLS and SHAW, JJ., concur.

      . We note here, as indicated earlier in this opinion, that the claimant does not contend, on appeal, that the delay in payment of nursing care services and authorization of the pain clinic constituted bad faith.

      . In this instance, the deputy expressly found the carrier’s conduct amounted to bad faith.


text:
    ARK CONSTRUCTION COMPANY and Kent Insurance Company, Appellants, v. David R. SMITH, Appellee.
    No. AH-46.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Douglas Edward Daze, of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appellants.
    Steven Burrage, of Robert D. Melton, P. A., Orlando, for appellee.
   PER CURIAM.

We affirm as to the award of compensation and attorney’s fees, but remand the cause to the deputy commissioner for recalculation of the temporary total disability benefits to allow the employer/carrier additional credit for compensation previously paid pursuant to the deputy’s order of March 26, 1981.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    COLAN’S RESTAURANT and Florida Farm Bureau Casualty Insurance Company, Appellants, v. Mable Lynn CRANFORD, Appellee.
    No. AH-79.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Arthur C. Fulmer, of Lane, Trohn, Bertrand & Williams, P. A., Lakeland, for appellants.
    Thomas Cassidy, of Stanley, Wines & Smith, P.A., Lakeland, for appellee.
   PER CURIAM.

We affirm the deputy’s order awarding claimant wage loss benefits, increasing claimant’s average weekly wage, allowing additional temporary total disability benefits, and penalties. However, the award of a fee to claimant’s attorney would be proper only pursuant to Section 440.34, Florida Statutes (1979).

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    G. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. AH-253.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

G. H., a juvenile, appeals from the trial court’s order directing him to pay $805.15 in restitution. We reverse and remand for further proceedings.

The facts are essentially undisputed. G. H. was initially arrested by the Gainesville police for the offense of criminal mischief. The juvenile complaint charged that he had driven his grandfather’s truck into a carport support pole, causing $805.15 in damages to that structure. He was also subsequently charged by an amended petition with leaving the scene of an accident.

On September 3, 1981, G. H. appeared before the trial court and changed his previous plea of not guilty to a plea of no contest to leaving the scene of an accident. His attorney announced that the plea was the result of a negotiation by which the state had agreed to drop the criminal mischief count and another charge for reckless driving. The assistant state attorney present agreed that the defendant’s counsel had accurately stated the agreement. Accordingly, the trial court accepted the plea and withheld adjudication until a dispositional report could be done.

Following the acceptance of the plea, the trial court announced that testimony on restitution was going to be received. The owner of the damaged property then testified that her carport had been damaged in the amount of $805.15. She also noted that she had paid the $100 deductible amount, and her insurance company had paid the rest.

Several weeks later, on October 1, 1981, the disposition hearing was held. The counselor from the Department of Health and Rehabilitative Services recommended that adjudication be withheld with the conditions that G. H. write a letter of apology to the victim, complete restitution, complete 30 hours of community work, surrender his driver’s license until the sanctions were completed, and remain under supervision. Further testimony was then adduced from several witnesses regarding restitution.

Following the testimony, the trial court entertained arguments by both attorneys. G. H.’s counsel argued that since he had only pled guilty to leaving the scene of an accident, and not malicious mischief, the trial court had no basis upon which it could order restitution. These assertions were countered by the assistant state attorney, who noted:

Your Honor, it’s my understanding at the plea negotiation that there would be a plea of leaving the scene of an accident with restitution to be determined by the court. I think if I understand (defense attorney) correctly, he’s saying that there should be no restitution paid... to the (victims) and I believe that would be in direct contradiction to the plea agreement.

The court subsequently entered an order withholding adjudication and ordering restitution. This appeal ensued.

Ordinarily, we would be inclined to agree with the defendant’s argument that restitution could not be predicated upon the charge of leaving the scene of an accident. Section 39.11(lXg), Florida Statutes (1981), provides that the circuit court may, among other things, “order the child or parent to make restitution for the damage or loss caused by his offense in a reasonable amount or manner to be determined by the court.” While this particular statutory provision does not appear to have been expressly construed, we have for guidance the decisions relating to the similarly worded counterpart for adult offenders, Section 775.089(1), Florida Statutes (1981), which allows a court to order a “defendant to make restitution to the aggrieved party for damage or loss caused by the defendant’s offense, if the defendant is able or will be able to make such restitution.” In a long line of cases, the Florida courts have held that a condition of restitution cannot require payment in excess of the amount of damage the criminal conduct caused the victim under the aegis of Section 775.089(1). See, e.g. Fresneda v. State, 347 So.2d 1021 (Fla.1977). Similarly, since G. H. was convicted only of the crime of leaving the scene of an accident, an act from which no damages flow, we find that he may not be subjected to any requirement of restitution for damages caused by his act of colliding with the victim’s carport. See Riner v. State, 389 So.2d 316 (Fla. 2nd DCA 1980). See also Hamm v. State, 403 So.2d 1155 (Fla. 1st DCA 1981).

Our analysis does not end here. We note the State’s argument that this point has been waived since the condition of restitution was part of a negotiated plea whereby the State agreed to drop the criminal mischief charge. If this is indeed true, defendant’s argument would appear to be an impermissible “gotcha” maneuver. However, the record is rather ambiguous upon this point. Therefore, in an abundance of caution, we remand this cause for a determination by the trial court as to whether such a deal was, in fact, made. If it was, the condition of restitution shall stand. If the trial court finds that no such deal was made, the condition of restitution shall be stricken.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


author: HUBBART, Chief Judge.

text:
    Dewey HICKS and Alejandro Rios, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1025.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.

      Bennett H. Brummer, Public Defender and Andrea Simonton, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

This is an appeal from a series of criminal convictions and sentences entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendants Dewey Hicks and Alejandro Rios were convicted below by a jury of (1) second degree murder [§ 782.04(2), Fla.Stat. (1977)] upon an indictment charging first degree murder, (2) kidnapping [§ 787.01, Fla.Stat. (1977) ], and (3) robbery [§ 812.13(2)(c), Fla.Stat. (1977)]; the defendant Rios was also convicted of second degree grand theft [§ 812.-014(b), Fla.Stat. (1977)]. Both defendants were given consecutive sentences of life imprisonment on the murder conviction, life imprisonment on the kidnapping conviction, and fifteen (15) years imprisonment on the robbery conviction; the defendant Rios was also given a concurrent sentence of five (5) years imprisonment on the grand theft conviction.

We have carefully examined the points raised on appeal by the defendants and find them insufficient to upset the convictions appealed from; we also find the defendants’ points insufficient to upset the sentences appealed from, save for the defendant Rios’ sentence on the grand theft conviction. We, accordingly, affirm except for the aforesaid grand theft sentence which shall stand reversed.

I

The central contention raised by the defendants on this appeal is that the trial court erred in failing to bifurcate the jury voir dire in this case in such a way that “death qualifying” questions relating to the jurors’ attitude toward capital punishment under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), would be reserved until the penalty phase of the trial, if such a phase became necessary. As it was, the prosecuting attorney was allowed to ask “death qualifying” questions of the jury during the only voir dire conducted prior to the jury being sworn which, it is urged, denied the defendants a fair trial. It is further urged that this error was compounded when the prosecuting attorney abandoned any effort to seek the death penalty at the close of all the evidence in the cause. We must reject the defendants’ contentions here for two reasons.

A

First, the alleged error was not, in our view, preserved for appellate review. No pretrial motion to bifurcate the jury voir dire in a manner now suggested was ever filed by the defendants below. No objection was raised below by the defendants when the prosecuting attorney asked the “death qualifying” questions of the jury on voir dire. It was not until after the jury voir dire was completed and the defense had accepted the jury that the defendants belatedly attempted to adopt the co-defendant Henry Page’s pretrial motion for a bifurcated jury voir dire. The trial court, at that point, quite properly denied the motion as clearly it came too late; the alleged offending voir dire had already taken place and the motion for a bifurcated jury voir dire was entirely moot. See Dobbert v. State, 409 So.2d 1053, 1057 (Fla.1982).

B

Secondly, the aforesaid argument must, in any event, fail on the merits because precisely the same argument has been squarely rejected by the Florida Supreme Court. Riley v. State, 366 So.2d 19, 21 (Fla.1979). The fact that the prosecuting attorney, as here, abandoned his efforts to seek the death penalty at the close of all the evidence cannot, without more, change this result. See Nettles v. State, 409 So.2d 85, 88 (Fla. 1st DCA 1982).

II

The defendants also urge a series of points which for convenience sake we treat under one heading as extended discussion thereon does not seem warranted. We are unpersuaded that the court or the prosecuting attorney indirectly commented on the defendants’ failure to testify in this cause, see e.g., Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980); White v. State, 348 So.2d 368 (Fla. 3d DCA 1977), rev’d in part on other grounds, 377 So.2d 1149 (Fla.1980). We fail to perceive any error in the co-defendant Henry Page’s initial refusal to testify before the jury in this cause because he gave no grounds therefor which might be prejudicial to the defendants and, in any event, changed his mind and did, in fact, testify against the defendants; as such, the instant ease is distinguishable on these points from Kaplow v. State, 157 So.2d 862 (Fla. 2d DCA 1963), relied upon for reversal herein. We see no merit to the corollary hearsay point raised as it was, at best, a harmless error. § 924.33, Fla.Stat. (1981). And the cumulative effect of the above points do not, as urged, present any reversible error.

HI

Finally, the defendant Rios attacks his conviction for second degree grand theft based on double jeopardy grounds. We must reject the defendant’s contention here, but we are required, based on other grounds, to set aside the five (5) year sentence entered upon the said grand theft conviction.

A

The defendants, Hicks and Rios, were charged in count III of the indictment herein with unlawfully taking certain property from the person of Perry Lamar Floyd “by force, violence or putting in fear” and the property so taken was described as “a [mjotor [vjehicle, a [t]ool box, and an [e]lec-tric [djrill.” The same defendants were also charged in count IV of the indictment with unlawfully obtaining “a motor vehicle the property of Perry Lamar Floyd, with the intent to permanently deprive the same Perry Lamar Floyd of a right to the said property.” It is undisputed that at trial it was established the same motor vehicle belonging to Perry Lamar Floyd was involved in both the robbery and grand theft counts. The jury convicted both defendants on the robbery charge, convicted the defendant Rios on the grand theft charge, and acquitted the defendant Hicks on the grand theft charge. As previously stated, the trial court sentenced both defendants to fifteen (15) years imprisonment on the robbery conviction and the defendant Rios to a concurrent term of five (5) years imprisonment on the grand theft conviction.

B

It is now the established law of this state that there is (a) no federal or state constitutional double jeopardy bar, and (b) no state statutory bar, to convicting a defendant of both a greater offense and a lesser included offense charged in a single indictment or information. State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981). There is, however, a state statutory bar under Section 775.021(4), Florida Statutes (1977), against sentencing a defendant so convicted on the lesser included offense conviction. State v. Hegstrom, supra. Moreover, robbery and larceny, as charged in the instant case, are clearly greater and lesser included offenses. Brown v. State, 206 So.2d 377 (Fla.1968).

1

It should be noted, however, that a different result obtains where, unlike this case, only the greater offense, and not the lesser included offense, is charged in the indictment or information. In that event, the law is clear that the trial court, upon proper request, is “duty bound to instruct the jury to the effect that should they be unable to find from the evidence beyond reasonable doubt that the defendants were guilty of the crime charged ... they could consider the evidence to determine whether the defendants were guilty of a lesser included offense.” Hand v. State, 199 So.2d 100, 103 (Fla.1967). Plainly, in these circumstances, the jury may convict the defendant of the greater offense or the lesser included offense, but not on both offenses. Brown v. State, 206 So.2d 377 (Fla.1968); indeed, the Florida Standard Criminal Jury Instructions, in effect, so states. Fla.Std. Jury Instr. (Crim.) 2.08 (allowing a jury verdict to be returned for either the crime charged or a lesser included offense). One may very well argue that this rule should not be any different when, as here, the prosecuting attorney chooses to place the lesser included offense in the indictment or information along with the greater .offense; the fact remains, however, that the law does make that distinction.

2

A different result also obtains where, unlike this case, the greater and lesser included offenses are prosecuted in two separate proceedings. In that event, a conviction or acquittal on the lesser offense would bar, on double jeopardy grounds, a subsequent prosecution for the greater offense. Chikitus v. Shands, 373 So.2d 904 (Fla.1979); Sanford v. State, 75 Fla. 393, 78 So. 340 (1918). It is also clear that a conviction or acquittal on the greater offense would similarly bar, on double jeopardy grounds, a subsequent prosecution for any lesser included offense. Albritton v. State, 137 Fla. 20, 187 So. 601, 603 (1939); Boswell v. State, 20 Fla. 869 (1884) (syllabus, no. 2); Wilcox v. State, 183 So.2d 555, 558 (Fla. 3d DCA 1966); 14 Fla.Jur.2d “Criminal Law” 501-02 (1979).

It may very well be argued that, for double jeopardy purposes, it should make no legal difference whether the prosecuting attorney makes a charging decision to place both the greater offense and the lesser included offense in the same indictment or information, or chooses, instead, to prosecute the greater and the lesser included offense in two separate indictments or in-formations. One’s double jeopardy rights should not, it would seem, be dependent here on a charging decision by the prosecuting attorney. Surely, for example, no one would contend that a defendant charged twice with precisely the same offense in a single indictment or information could be convicted in the same trial on both offenses as clearly one’s double jeopardy rights are not dependent here on two separate proceedings. Nonetheless, it seems plain that under the existing state of the law, a defendant may properly be charged and convicted of a greater and lesser included offense providing the same are charged in the same indictment or information; a different result obtains where, unlike this case, the prosecuting attorney decides to charge the greater and the lesser included offense in two separate indictments or informations in two separate proceedings.

3

It should be noted, however, that there may be some real risks involved for the state, and seemingly very little advantage, where the state decides, as here, to charge both a greater and a lesser included offense in the same indictment or information. If, for example, the jury convicts on the greater offense, but acquits on the lesser included offense, there is a very real question as to whether the conviction on the greater offense can stand as the jury has, in fact, acquitted the defendant of an essential element of the greater offense. See e.g., Mahaun v. State, 377 So.2d 1158, 1161 (Fla.1979) (greater offense conviction of third degree murder reversed because jury acquitted defendant on the lesser included offense, to wit: the underlying felony involved in the third degree murder charge). On the other hand, if the jury acquits on the greater offense and convicts on the lesser included offense, there is also a very real question as to whether the jury has acquitted the defendant on all elements of the greater offense, which, of necessity, would preclude a conviction on a lesser included offense. See, e.g., Redondo v. State, 403 So.2d 954 (Fla.1981) (lesser included offense conviction of unlawful possession of a firearm during the commission of a felony reversed because jury acquitted defendant of the greater offense of aggravated battery). We need not resolve these problems in this case, however, as the issue is not presented here in any form by any of the defendants; such questions must be left for another day with only a red flag warning as to the possible dangers involved for the state in charging greater and lesser included offenses in a single indictment or information.

C

Turning to the instant case, the defendant Rios was charged with a greater and a lesser included offense in the indictment herein. He was charged with the robbery of complainant’s motor vehicle, tool box and electric drill; he was also charged with the lesser included offense of second degree grand theft of the same complainant’s motor vehicle. Since both offenses were charged in a single indictment, it is clear under the existing law that the defendant Rios could be convicted, as he was, on both offenses; he could only be sentenced, however, on the greater offense of robbery. It is, therefore, plain that we are required under the established law to affirm Rios’ conviction for second degree grand theft, but reverse the five (5) year sentence imposed thereon as being barred by Florida statutory law. § 775.021(4), Fla.Stat. (1977).

IV

The judgments of conviction entered in this cause as to both defendants are affirmed. The sentences entered in this cause as to both defendants are also affirmed, except for the five (5) year sentence imposed for the crime of second degree grand theft as to the defendant Rios; the latter sentence is hereby reversed.

Affirmed in part; reversed in part.

      . The jury, in fact, did precisely that in the instant case when it convicted the defendant Hicks of robbery, but acquitted him of the lesser included offense of second degree grand theft.

      . Unlawful possession of a firearm during the commission of a felony is a lesser included offense of the underlying felony where said underlying felony has as one of its essential elements the use of a firearm, e.g., armed robbery, aggravated battery. State v. Monroe, 406 So.2d 1115 (Fla.1981).


author: NESBITT, Judge.

text:
    Gordon Russell PARKS, Appellant, v. CITY OF HOMESTEAD, a Municipal corporation of the State of Florida, and James R. McLaughlin, Appellees.
    No. 80-2377.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    John H. Lipinski, Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Valle and Carlos E. Casuso and Stephen E. Tunstall, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   NESBITT, Judge.

Parks appeals from an adverse judgment in favor of the defendants, the City of Homestead and Officer James R. McLaughlin, on Parks’ action for false arrest.

In early September, 1976, while Officer McLaughlin was working as an undercover officer for the narcotics unit, he learned from a reliable confidential informant that Parks was selling marijuana from his apartment. In response to this tip, McLaughlin and another detective established a three-day surveillance of Parks’ apartment. During the course of three eight-hour shifts, the officers observed at least ten persons per day, between the ages of thirteen and twenty, knocking on Parks’ door. Parks was seen exchanging unidentified goods with each of these individuals. Based on the information from the confidential informant and the surveillance, McLaughlin obtained a search warrant from the Municipal Judge of the City of Homestead. The search was conducted while Parks was out of his apartment. The officers found a pipe which contained marijuana residue, a small bag of marijuana, and a radio identified as one which had been stolen from the Homestead Police Department. Ironically, when Parks returned to his disheveled apartment, he telephoned the Homestead police to report what he believed to have been a burglary of his dwelling. The Homestead police promptly arrived and arrested Parks, charging him with receiving stolen property, possession of cannabis, and unlawful possession or sale of a controlled substance. Parks filed a motion to suppress the evidence seized from his apartment. The motion was granted on the basis that there was no enabling ordinance in the City of Homestead authorizing a municipal judge to issue a search warrant. As a result, the criminal prosecution was terminated.

Parks then commenced this civil action for false arrest. At the trial, it was stipulated that the search warrant was void and the jury was instructed to that effect. Over Parks’ objection, the trial judge also instructed the jury that the officer’s good faith in making the arrest would be a valid defense. A verdict was entered in favor of the defendants.

Parks appeals, claiming that the defense of good faith is unavailable when the instrument upon which that defense was predicated was void on its face. In Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the Supreme Court considered the liability of police officers for false arrest:

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (CA 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.

In Reilly v. United States Fidelity & Guaranty Co., 15 F.2d 314, 315 (9th Cir. 1926), the court stated the rule with respect to the execution of warrants:

The general rule is that if an officer arrests one under a warrant absolutely void on its face he may be liable for false imprisonment. But if the arrest is made under a process that is voidable merely, or, if void, the fact does not appear on the face of the writ, the officer will be protected. He cannot be permitted to refuse to serve a writ because of his own belief that the magistrate issuing the writ has no jurisdiction.

Florida comports with this view as evidenced by the decision in Boca Raton v. Coughlin, 299 So.2d 105 (Fla. 4th DCA 1974). There, nearly two years after the United States Supreme Court, in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), decided that the First and Fourteenth Amendments prohibit making the mere private possession of obscene material a crime, police officers of the City of Boca Raton enforced an extant unconstitutional ordinance against Coughlin. The court, in reversing the judgment in favor of Coughlin in her suit for false arrest, held that good faith was available as a defense even though the ordinance was invalid and unconstitutional.

Following the rationale of these decisions, we must affirm the jury verdict in the present case. The issue is not whether the warrant was void but whether the police officer procuring and executing it had a reasonable belief that the Municipal Judge of the City of Homestead had authority to issue the warrant. See Boca Raton v. Coughlin, supra. This is clearly a factual issue which was properly presented to the jury and resolved in favor of the defendants.

Our review of the record reveals that there was substantial evidence from which the jury could have rendered its decision. Officer McLaughlin testified that Homestead police traditionally and continuously have sought and been issued search warrants from the Municipal Judge without knowledge of the invalidity of such warrants. Those warrants provided the basis for admissible evidence and convictions in a number of other cases. Under the circumstances, the jury apparently believed that the officer was justified in relying upon the custom and practice with respect to the execution of a warrant. Consequently, we will not disturb the jury’s determination.

Affirmed.


text:
    Eric L. SMART, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2395.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lipson and John F. Robenalt, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See e.g., Salvatore v. State, 366 So.2d 745, 750 (Fla.1979); Perry v. State, 146 Fla. 187, 200 So. 525, 527 (1941).


text:
    The STATE of Florida, Appellant, v. Phillip Gene GRABARNICK, Appellee.
    No. 80-2408.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Joel Hirschhorn and Harry M. Solomon, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appellant, the State of Florida, appeals an order of the trial court granting Phillip Grabarnick’s motion to dismiss count four of an information filed against Phillip Gra-bamick by holding that Section 817.035(2), (3), Florida Statutes (1977) is unconstitutional. We conclude the Florida Schemes to Defraud statute to be constitutional and, accordingly, reverse.

Section 817.035(2), (3) bears a remarkable similarity to 18 U.S.C.A. 1341 (federal mail fraud statute) and is virtually identical to §§ 190.60 and 190.65 of the New York Penal Law. The purpose and thrust of this statute was to codify an offense encompassing ongoing schemes to defraud. We deal first with the vagueness issue and conclude that § 817.035(2), (3) is not facially vague. The statute in question carries a sufficient warning for potential actors to realize their conduct will be considered unlawful. State v. Lindsay, 284 So.2d 377 (Fla.1973). No further detail or specification is necessary. Griffin v. State, 396 So.2d 152 (Fla.1981); Bell v. State, 289 So.2d 388 (Fla.1973).

The next contention is that even if § 817.035(2), (3) were not facially vague, the term “systematic ongoing course of conduct” operates to create a constitutional ambiguity requiring a separate examination for vagueness. We analogize “systematic ongoing course of conduct” with “continuing criminal enterprise” and conclude that one is sufficiently put on notice that the law will punish more harshly where the unlawful conduct is continuous rather than a single act. United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. Feinberg, 535 F.2d 1004 (7th Cir. 1976); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Collier, 493 F.2d 327 (6th Cir. 1974); United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973).

Finally, it is argued that the misdemeanor/felony classification scheme found in § 817.035(2), (3) is invalid because the statute irrationally focuses upon the number of people affected rather than the amount of the property involved. We find no constitutional infirmity in the statutory scheme. It is the number of people involved that is directly related to the dimensions of the fraudulent scheme and the ultimate penalty. People v. Ford, 103 Misc.2d 249, 425 N.Y.S.2d 739 (1980), Additional Commentary to N.Y. Penal Law § 190.60, McKinney’s at 97.

Accordingly, we reverse the order of the trial court finding 817.035(2), (3) unconstitutional and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.


text:
    Walburga BELTRAN, William Beltran, individually and as personal representatives of the Estate of Candice Beltran, a minor deceased, Appellants, v. WASTE MANAGEMENT, INC. of Florida, Bobby Johnson and American Motorists Insurance Company, Appellees.
    No. 81-63.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.

      Cohen & Cohen, Miami Beach, Greene & Cooper and Mark Cooper, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskem and Robert Tucker and Stanley Buky, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

The Beltrans appeal from a final judgment following a jury trial which found no negligence on the part of Waste Management, Inc. of Florida and its driver, Bobby Johnson. We reverse.

The trial court erred when it granted, over plaintiff’s objection, a defense-requested instruction dealing, in essence, with “last clear chance”, which was approved by our Supreme Court in Kerr v. Caraway, 78 So.2d 571 (Fla.1955). Since Kerr was decided, Florida has become a comparative negligence state. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). To the extent that the instruction approved in Kerr has any efficacy, it is not applicable in a comparative negligence setting. Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA 1969); see also Fla.Std.Jury Instr. (Civ.) 4.7; cf. Florida East Coast Railway Co. v. McKinney, 227 So.2d 99 (Fla. 1st DCA 1969).

For the foregoing reasons, the judgment of the circuit court is reversed and this cause remanded for a new trial.

      . The charge given by the court is as follows: If a motorist has the right of way, that motorist has the right to assume that another approaching motorist will yield the right of way. And it will not be contributory negligence to act on such an assumption on proceeding into the intersection, unless such motorist became aware of the fact that the right of way would not be given and unless he or she then had a clear opportunity to avoid the collision.


author: BASKIN, Judge.

text:
    Billy Gene NEAL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-512.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and H. T. Smith, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.

      Before BARKDULL and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

Finding no error in the admission of similar fact evidence to establish identity, Williams v. State, 110 So.2d 654 (Fla.1959), and noting that defense counsel agreed to the consolidation of cases, we affirm the conviction of kidnapping and sexual battery; however, we strike as untimely the trial court’s retention of jurisdiction over one-third of defendant Neal’s sentence. Section 947.16(3), Florida Statutes (1979) provides that “at the time of sentencing the judge may enter an order retaining jurisdiction .... ” The order retaining jurisdiction entered almost two months after sentence failed to comply with the statute. The court’s announcement two weeks after imposition of sentence that it intended to retain jurisdiction at a later date did not fulfill statutory requirements. See Hayes v. State, 400 So.2d 519 (Fla. 3d DCA 1981); Knight v. State, 398 So.2d 833 (Fla. 5th DCA 1981).

Affirmed as modified.


text:
    Verna Fox DRUCKMAN, Appellant, v. Ira Jay DRUCKMAN, Appellee.
    Nos. 81-800, 81-1362.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Gars, Dixon & Shapiro and Sandy Karlan, Bruce Rogow, Fort Lauderdale, for appellant.
    Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Pitts v. Pitts, 412 So.2d 404 (Fla. 3d DCA 1982); Quick v. Quick, 400 So.2d 1297 (Fla. 1st DCA 1981); Kaylor v. Kaylor, 390 So.2d 752 (Fla. 4th DCA 1980); Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), review denied, 397 So.2d 778 (Fla.1981).


text:
    Kelvin FAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 81-826.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Spaziano v. State, 393 So.2d 1119 (Fla.1981); State v. Bryan, 290 So.2d 482 (Fla.1974); Gardner v. State, 405 So.2d 470 (Fla. 3d DCA 1981).


text:
    LOUIS SHERRY ASSOCIATES, INC. and Harding Realty, Inc., Appellants, v. Joel OPATUT, Appellee.
    No. 81-838.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Myers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman and William M. Grodnick, Miami, for appellants.
    Dean, Mead, Egerton, Bloodworth, Ca-pouano & Bozarth, Orlando, amicus curiae.
    Arky, Freed, Stearns, Watson & Greer and R. Lawrence Bonner, Miami, for appel-lee.
    Before HUBBART, C. J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

On motion for rehearing after a non-jury trial, the lower court entered judgment against the plaintiff-appellants in an action for a real estate brokerage commission. It found that

1. The real estate broker has the burden of proving by a preponderance of the evidence that he is entitled to recover under the commission agreement.
2. The failure of the parties to agree as to what personal property was to be included as part of the real estate transaction, an essential term, evidences that the broker had yet to produce a ready buyer, willing to purchase on terms acceptable to the vendor.
3. The failure of an agreement as to what amount, if any, the seller was willing to spend for repairs to the subject property, which term is essential, further evidences that the broker had yet to produce a ready buyer, willing to purchase on terms acceptable to the vendor.
4. The deposit receipt contract prepared by the broker and submitted to the vendor was at variance with the listing agreement entered into by the parties therefore it cannot be contended that the transaction failed solely because of ill faith or capriciousness on the part of the vendor.

We conclude that these findings are supported by both substantial, competent evidence, see Delgado v. Strong, 360 So.2d 73 (Fla.1978), and the applicable law. Judson v. Mobley, 62 So.2d 730 (Fla.1953); Banks Beal Estate Corp. v. Gordon, 353 So.2d 859, 860 (Fla.3d DCA 1977), and cases cited. Affirmed.


text:
    Dianna Lee FINN, Appellant, v. John Aubrey FINN, Appellee.
    No. 81-905.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Richard M. Gale, Lisa Bennett, Miami, for appellant.
    Alan Goldfarb, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

The wife challenges two aspects of a final judgment of dissolution of marriage. First, she contends that it was error to award permanent custody of the parties’ minor children to the father without first affording her counsel an opportunity to review a supplemental oral report of the clinical psychologist appointed to make findings on the custody issue. Secondly, she contends the trial court erred in requiring her to quitclaim her undivided one-half interest in the marital home to the husband based upon a finding of the husband’s special equity. Because we agree with both contentions, we reverse and remand for further proceedings.

The wife’s pretrial catalog put forth that the husband was an unfit parent by reason of sexual molestation of the couple’s nine-year-old daughter. The trial court appointed a clinical psychologist who entered full reports of the psychological condition of all four members of the Finn family. These reports were made available to both parties in advance of trial. At trial, the clinical psychologist testified there were no demonstrable symptoms on the husband’s behalf that would warrant a determination that he suffered from a propensity to commit sexual offenses. To refute this testimony, the wife requested permission to call the child to the witness stand. At this juncture, the trial court properly exercised its discretion in refusing to permit the minor child to be called, “to take sides” against the father. Spencer v. Spencer, 242 So.2d 786 (Fla. 4th DCA), cert. denied, 248 So.2d 169 (Fla.1971). As an alternative, the court gave the wife’s counsel an opportunity to submit a list of questions to be propounded to the child. It was proposed that the questions first be evaluated by the clinical psychologist. After the questions were reviewed by the psychologist, the court, apparently based upon an oral ex parte communique with the psychologist, determined that there was no basis for calling the child and entered the final judgment appealed from without further evidentiary hearing or argument.

It is a logical extension of Kern v. Kern, 333 So.2d 17 (Fla.1976) [where the constitutionality of Section 61.20, Florida Statutes (1971) was upheld] to hold that oral communiques supplemental to the written reports discussed in that case should also be made available to either party so as to afford them an opportunity to rebut or refute any conclusions therein. Cf. In Re Brown, 246 So.2d 166 (Fla. 3d DCA 1971) [holding that it was error for the trial court to consider anything not in evidence, and not otherwise made available to the parties, in connection with the award of child custody]. The trial court’s closed ex parte consultation with the child psychologist, although motivated by a laudable desire to protect the young child, abridged the wife’s right to procedural due process. Kern v. Kern, supra.

For this reason, the order awarding permanent custody of the minor daughter to the husband is reversed with directions that the husband continue to have temporary custody until the substantial content of the supplemental oral ex parte communique between the trial court and the clinical psychologist is made available to both parties. At that time, if warranted, a further evi-dentiary hearing on the redetermination of child custody shall be held. However, should the wife not desire to challenge or fail to proffer any good and sufficient reasons to refute the content of the subject oral communique, the trial court will be authorized to affirm its award of permanent custody of the child to the father without an additional evidentiary hearing.

As to the husband’s claim of a special equity, the record is devoid of any competent and substantial evidence, Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979), to demonstrate that the marital home was wholly or partially acquired with funds generated by the husband outside normal contributions to the marriage. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980). Consequently, the trial court should have left the parties as tenants in common of the marital property. Nonetheless, based upon the eventual outcome of the permanent custody award, the trial court will be entitled within its discretion to transfer the noncustodial parent’s interest in the house to the other parent as an incident of child support until both minor children are emancipated.

Reversed and remanded with directions.


text:
    Rene Sito PADRON-CANTO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-923.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender and Diane V. Ward, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., BASKIN, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The judgment of conviction and sentence for carrying a concealed firearm [§ 790.-01(2), Fla.Stat. (1979) ] under review by this appeal is reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause.

Our review of the record on appeal reveals that no evidence was ever adduced below tending to show that the firearm admittedly possessed in this ease by the defendant was ever concealed; indeed, the evidence is to the contrary that the firearm was held by the defendant in such a way that it was plainly visible to the ordinary sight of another person. The law is clear that proof of concealment is an essential element of the crime of carrying a concealed firearm under Section 790.01(2), Florida Statutes (1981), and such element must be proven beyond a reasonable doubt. As such, the trial court erred in denying the defendant’s motion for judgment of acquittal made at the close of the state’s case and renewed at the close of all the evidence. Quiroga v. State, 364 So.2d 47 (Fla. 3d DCA 1978); Donald v. State, 344 So.2d 633 (Fla. 2d DCA 1977).

Reversed and remanded with directions to discharge the defendant from the cause.


text:
    Toufic KHOUVEIRI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-937.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Raymond J. Takiff, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Eunice Martin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., FERGUSON, Jr., J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Toufic Khouveiri petitioned for a writ of habeas corpus. He appeared before the court with his attorney and a representative from the State Attorney’s office which had been notified. His sworn testimony was taken. The writ was denied.

The petitioner urges in this court that the denial of the writ was error. The State responds that the writ was not denied upon the merits, but because the petition was deficient in form and the petitioner did not make out a prima facie case.

We hold that inasmuch as the petition was a sufficient basis for a hearing and the sworn testimony of the petitioner before the court made out a prima facie case, see Ashley v. State, 158 So.2d 530 (Fla.2d DCA 1963), the rule should have been issued. Accordingly, the order denying the writ is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Michelle M. ECKHOFF and Peter Eckhoff, Appellants, v. REVLON, INC., and National Health Laboratories, Inc., Appellees.
    No. 81-1057.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    George, Hartz & McNary, Miami, Amy Shield Levine, Boca Raton, for appellants.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for ap-pellees.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

The judgment of the trial court is affirmed in all respects except for that portion awarding attorney’s fees to Revlon, Inc. and to Physician’s Reference Laboratories, Inc. Section 57.105, Florida Statutes (1979) requires a complete absence of a justiciable issue of either law or fact. Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla. 3d DCA 1981).

The positions asserted by the Eckhoffs and National Health Laboratories were in good faith, soundly based and, on this record, not frivolous. Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981).

Affirmed in part and reversed in part.


text:
    Levi BARBES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1111.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and Stuart H. Gitlitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., SCHWARTZ, J. and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Grant v. State, 390 So.2d 341 (Fla.1980); Addison v. State, 378 So.2d 838 (Fla. 1st DCA 1980); § 901.151, Fla.Stat. (1979).


author: HENDRY, Judge.

text:
    Susan BLOOM, Appellant, v. Michael BLOOM, Appellee.
    No. 81-1293.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.

      Hersh & Bernstein and Brian Hersh, Miami, for appellant.
    Daniel Mones and Frank M. Marks, Miami, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   HENDRY, Judge.

The wife appeals from an order granting the husband’s exceptions to a general master’s report finding him in substantial arrears in child support payments, and an order on motion for clarification and rehearing.

A separation agreement between the parties providing, inter alia, for child support payments, was incorporated into a final judgment of dissolution in New York in 1972. The judgment, requiring the husband to pay child support of $50 per week for each of the parties’ two sons plus annual adjustments based on the Consumer Price Index (CPI), was domesticated in Florida in 1974. In 1980, the wife filed a motion for contempt to require the husband to pay arrearages, claiming that beginning in 1973 the husband had failed to make the increased adjustments under the CPI. Pursuant to referral by the circuit court, a general master submitted a report recommending that (1) New York law should govern the action, (2) the defenses of waiver, estoppel, laches, and the Florida statute of limitations were unavailable to the husband, (3) voluntary payments by the husband toward the children’s expenses could not be set off against his support obligations, (4) the husband was in arrears on his annual adjustment on child support payments in the amount of $9,465.00 as of December 30, 1980, and (5) the wife was not entitled to pre-judgment interest on the arrearages. The master’s report was initially adopted in its entirety by the circuit court, but after both parties filed exceptions to it and a hearing was held, the court vacated its earlier order.

The court’s final order then ruled that the master’s findings were erroneous with respect to denial of a setoff for voluntary contributions, but that in any event the wife was barred by equitable and legal considerations from claiming the arrearages sought by having accepted payments with knowledge of the shortage, thereby causing the husband to materially alter his position. The wife filed a motion for rehearing and clarification, pursuant to which the court amended its previous order to find the husband in arrears for $1,450 for cost of living increases in 1980 and ordering him to pay them for all future years. Both the court’s order on the exceptions to the master’s report and its order on the motion for clarification are appealed.

On appeal, the wife argues that the trial court improperly rejected the general master’s findings by entering an order totally inconsistent with the record evidence. We agree.

The findings of fact and recommendations of a master should be approved and adopted by a trial judge unless clearly erroneous, or it appears that the master has misconceived the legal effect of the evidence. Mann v. Mann, 399 So.2d 1009 (Fla. 3d DCA 1981); Shaw v. Shaw, 369 So.2d 81 (Fla. 3d DCA 1979); Claughton v. Claughton, 347 So.2d 437 (Fla. 3d DCA 1977); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974). In our view, the trial court abused its discretion by rejecting certain portions of the general master’s report. Although the trial court’s order recites that the master erroneously determined that under the facts the husband could not claim the statute of limitations or equitable defenses as a bar to recovery, see Mann v. Mann, supra; Shaw v. Shaw, supra, we find that the court has misconceived the law in this regard. We address each of the master’s findings in turn.

First, we find that the general master and the trial court both properly concluded that New York law should be applied to resolve this controversy since the parties agreed to be governed by the laws of the State of New York on matters affecting the separation agreement. Where it can be ascertained, the intent of the parties shall govern as to which state’s law shall apply. See Hirsch v. Hirsch, 309 So.2d 47 (Fla. 3d DCA 1975). In accordance with the parties’ wish, we will apply New York law where the applicable standards differ from those of Florida.

Second, the master held that the Florida statute of limitations was not a bar to recovery of the arrearages by the wife. Without specifying which statute of limitations (New York or Florida) applied, the trial court reversed this finding and ruled that the wife was barred from recovery on this basis. Neither the trial court nor the husband has cited an applicable statute or any New York case law on this issue, and our independent research has also failed to discover any. In the absence of authority to the contrary, we must presume that New York law follows our own in this respect. Under Florida law, proceedings for enforcement of support judgments are equitable in nature, and are not barred by the running of the statute of limitations. Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980); Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979).

Nor are estoppel, waiver and lach-es a bar to enforcement of the arrearages in this case although these equitable defenses do apply in such proceedings. The evidence presented negates any suggestion that the wife intended to abandon or waive her claim for the underpayments since the shortages were only recently discovered. Additionally, laches does not bar recovery under New York law absent a showing of prejudice to the husband. Maule v. Kaufman, 33 N.Y.2d 58, 304 N.E.2d 234, 349 N.Y.S.2d 368 (1973). In Maulé, evidence was held insufficient to bar recovery of child support arrearages even though the action was not begun until three years after the child reached 21 and almost ten years after payments ceased, and one of the husband’s witnesses had died in the interim. See also Zeitlan v. Zeitlan, 44 A.D.2d 608, 353 N.Y.S.2d 532 (App.Div.1974). Following this standard, we find the record fails to show that the husband was prejudiced since the only evidence in this regard is extra funds sent to the family, and these payments were in the nature of gifts. Accordingly, the trial court improperly reversed the general master’s finding that the statute of limitations and equitable defenses were not a bar to recovery in this case. Cf. Clurman v. Clurman, 84 Misc.2d 148, 373 N.Y.S.2d 951 (Sup.Ct.1975), aff’d., 51 A.D.2d 915, 382 N.Y.S.2d 281 (App.Div.1976) (where husband, by letter, requested modification of agreement, and wife continued accepting payments in accordance with the requested modification, husband’s change in life style in reliance upon wife’s apparent acceptance barred recovery for past due alimony).

Third, the master’s finding that voluntary payments by the husband toward the children’s expenses could not be set off against his support obligations is fully in accordance with New York law. The general rule is that payments made by a father to or for the benefit of his children voluntarily and not pursuant to a divorce decree may not be credited by him against other amounts due and owing under the decree. Horne v. Horne, 22 N.Y.2d 219, 239 N.E.2d 348, 292 N.Y.S.2d 411 (1968); Soltow v. Soltow, 47 A.D.2d 652, 364 N.Y.S.2d 28 (App.Div.1975). Since the payments in this case were gratuitous, the law was properly applied.

Fourth, the amount found by the master to be in arrears based on the annual CPI adjustments, $9,465.00, is not challenged.

Finally, the master properly denied the wife pre-judgment interest. Interest is not available on support arrears from the due date of each installment. Wolfe v. Wolfe, 86 Misc.2d 313, 382 N.Y.S.2d 245 (Sup.Ct.1976), rev’d. on other grounds, 64 A.D.2d 700, 407 N.Y.S.2d 568 (App.Div.1978). See also Maulé v. Kaufman, supra.

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment in accordance with the findings and conclusions of the master.

Reversed and remanded.


text:
    SONNY’S ITALIAN RESTAURANT AND PIZZERIA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 81-1517.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.

      Lane Abraham and Sy Chadroff, Miami, for appellant.
    James N. Watson, Jr. and Harry Purnell, Tallahassee, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

The final agency order under review revoking appellant’s liquor license is affirmed upon a holding that: (1) the agency head correctly denied the motion for disqualification, Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982), (2) the order is supported by substantial, competent evidence, (3) the agency properly rejected proposed facts found to be subordinate, cumulative or unnecessary with the statement that such facts were immaterial or irrelevant, Fla.Admin.Code Rule 28-5.405(3); Forress-ter v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979); accord, Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied sub nom. Askew v. Agrico Chemical Co., 376 So.2d 74 (Fla.1979), and the appellant has failed to demonstrate that the fairness or correctness of the proceedings were materially impaired by the agency’s failure to explicitly rule on each proposed finding of fact, see Parekh v. Career Service Commission, 346 So.2d 145 (Fla. 1st DCA 1977); Sec. 120.68(8), Fla. Stat. (1981), and (4) any error resulting from entry of the final order on July 2, 1981, prior to receipt of appellant’s exceptions to the recommended order, is not material in light of the fact that the exceptions, dated July 6, 1981, were not filed within the requisite ten day period of section 120.57(l)(b)8, Fla.Stat. (1981), when measured from either the date the recommended order was entered (June 19), or the date submitted to the agency and parties (June 23). Sec. 120.68(8), Fla.Stat. (1981).

Affirmed.


text:
    A. Y. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1583.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender, and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This appeal presents the familiar problem of whether the juvenile’s adjudication of delinquency for the crime of burglary is supported by sufficient circumstantial evidence to establish her intent to participate in the criminal activity. Finding that it is not, we reverse.

In the light most favorable to the state, the evidence established that A. Y. G. was seen in a vehicle parked behind a South Miami shopping center at four o’clock in the morning. Two male juveniles were observed hurriedly exiting the burglarized store, dropping items as they ran toward the automobile in which the appellant was seated. They quickly entered the passenger side of the vehicle and ordered A. Y. G. to drive away. She left the scene at a high speed. Observing officers gave pursuit, chasing the fleeing vehicle through two red lights before it crashed into a telephone pole and became disabled. The two males fled and the appellant was apprehended. She told arresting officers that one of the passengers had depressed the accelerator of the automobile and maneuvered the steering wheel. At trial, however, she testified that she had not been driving the vehicle.

Since there is no evidence that the juvenile actually entered the store, she may only be adjudicated of delinquency for burglary as an aider and abettor. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972). It is well established that to be convicted as an aider and abettor, the state must show an intent to participate in the perpetration of the crime. J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980). Where there is no direct evidence of intent, the circumstantial evidence relied upon to show such an intent must be such as to preclude every reasonable inference that the defendant did not intend to participate in the criminal activity. K. W. U. v. State, 367 So.2d 647 (Fla. 3d DCA), cert. denied, 378 So.2d 349 (Fla.1979).

Evidence that the defendant was present at the scene of the crime and drove the “getaway” car at the request of the perpetrator of the burglary does not exclude the reasonable inference that the defendant had no knowledge of the crime until after it occurred; thus, she did not have the requisite intent. J. H. v. State, supra; Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). Although A. Y. G.’s flight from the police may have been strong evidence that she was an accessory after the fact, she cannot be convicted as an accessory after the fact where that crime was not charged. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969); Douglas v. State, supra.

This case graphically demonstrates the desirability and the necessity in this type of situation for the State Attorney to charge the defendant not only as a principal under Section 777.011, Florida Statutes (1979) but, in the alternative, as an accessory after the fact pursuant to Section 777.03, Florida Statutes (1979). Had the state done so in this case, the needless expenditure of time and effort would have been avoided.

For the foregoing reasons, the juvenile’s adjudication of delinquency is reversed.


text:
    Valerie TRACEY, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 81-1591.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, and Maria Rodriguez, for appellant.
    Preddy, Kutner & Hardy and Glenn P. Falk, Miami, for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant Tracey, a passenger in an automobile driven by an unrelated named insured, was injured in an accident. After instituting an action against the insurer under the insured’s PIP coverage, the parties settled and judgment was entered by the trial court. Claiming to be an insured under the policy, appellant then sought, in a declaratory action, to establish the right to attorney’s fees pursuant to section 627.-428(1), Florida Statutes (1979). The trial court ruled that she was not entitled to attorney’s fees incurred in the litigation.

This issue has been decided adversely to appellant by this court in Fernandez v. Alonso, 375 So.2d 8 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980). Since that decision, the Fourth District Court of Appeal, in Prygrocki v. Industrial Fire & Casualty Co., 407 So.2d 345 (Fla. 4th DCA 1981), addressing the same issue, ruled that a PIP claimant, unrelated to the named insured, is entitled to recover attorney’s fees incurred in litigation against the insurer. We are constrained by our decision in Fernandez and affirm the trial court’s decision. We certify that this decision is in express and direct conflict with the Fourth District Court of Appeal’s decision in Pry-grocki.

Affirmed.


text:
    Andrew STUCKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1606.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   HENDRY, Judge.

The defendant’s conviction for second degree grand theft and resisting arrest is reversed. The circumstantial evidence fails to establish beyond a reasonable doubt that defendant had the specific intent to participate as an aider and abettor in the crime charged. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980). Although his conduct in driving the actual perpetrator to and from the scene of the shoplifting, Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Pack v. State, supra, in combination with other questionable after-the-fact behavior, J. O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980) and cases cited, might be suggestive of guilt, such evidence is insufficient to exclude a reasonable hypothesis of innocence generated by defendant’s explanation of his presence at the time and place of the commission of the crime. See Pack v. State, supra; J. H. v. State, supra; Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

Reversed and remanded with directions to discharge the defendant.


author: DANIEL S. PEARSON, Judge.

text:
    Willie TURNER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2368.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Dubiner & Blumberg, West Palm Beach, and Sara Bresky Blumberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Turner, charged with second-degree murder, was convicted of manslaughter. We reverse for two reasons.

After the jury (initially instructed on, inter alia, the law relating to second-degree murder, manslaughter and excusable and justifiable homicide) retired to deliberate, it asked in a note to the court: “Can you explain or define the charge of manslaughter and second degree murder as stated by you in the law . .. ?” The trial court rein-structed the jury in accordance with the request in the note and refused Turner’s request to reinstruct the jury on excusable and justifiable homicide.

While in some instances it is not error to limit a reinstruction to a direct response to the jury’s specific request, see, e.g., Henry v. State, 359 So.2d 864 (Fla.1978) (request to clarify difference between first and second-degree murder), when the jury’s request necessarily elicits a reinstruction on manslaughter and the defendant is convicted of manslaughter, it is error to fail to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter. Hedges v. State, 172 So.2d 824 (Fla.1965); Kelsey v. State, 410 So.2d 988 (Fla. 1st DCA 1982); Gross v. State, 397 So.2d 313 (Fla. 4th DCA 1981); Lawson v. State, 383 So.2d 1114 (Fla. 3d DCA 1980). The oft-repeated reason for this rule is:

“[Manslaughter] is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.” Hedges v. State, supra, at 826.

Additionally, the trial court erred in denying Turner’s motion for mistrial when the State improperly elicited testimony from a police officer that Turner, after being given Miranda warnings and making certain statements, ultimately stated “that is all I am gonna tell you right now.”

Florida courts have persistently held that any reference in the jury’s presence to the defendant’s assertion of his right to decline to answer police questions is reversible when the error of such comment is, as here, properly preserved. Clark v. State, 363 So.2d 331 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979); Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977). In our view, the comment in the present case can only be construed as a comment on Turner’s refusal to further speak, see Peterson v. State, 405 So.2d 997, 999 (Fla. 3d DCA 1981) (statement that defendant “would stop when he didn’t want to answer any more” improper reference to defendant’s refusal to talk); Thompson v. State, 386 So.2d 264, 266 (Fla. 3d DCA 1980) (statement that defendant “would not talk any further,” same); Lucas v. State, 335 So.2d 566, 567 (Fla. 1st DCA 1976) (statement that defendant “didn’t want to talk [to officer] anymore,” same), and is not, as the State suggests, an affirmative inculpa-tory statement. Cf. Antone v. State, 382 So.2d 1205, 1213 (Fla.1980) (defendant’s statement, “Sicilians do not fink” not assertion of right to remain silent).

Reversed and remanded.

      . Since Turner, whose defense was self-defense, was convicted of manslaughter, we quite clearly cannot say that the error was harmless. Compare Dean v. State, 325 So.2d 14 (Fla. 1st DCA 1975) (conviction of first-degree murder renders harmless failure to reinstruct on justifiable and excusable homicide as part of gratuitous instruction on manslaughter), and Lawson v. State, supra (same, in dicta), with Hunter v. State, 378 So.2d 845 (Fla. 1st DCA 1979) (conviction for third-degree murder reversed where trial court failed to instruct on justifiable and excusable homicide as part of manslaughter reinstruction).


text:
    Charles T. SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 82-324.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Charles T. Scott, in pro. per.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

By this certiorari proceeding the appellant seeks to quash an order that retained jurisdiction over him as a defendant serving a criminal sentence pursuant to Section 947.16 Fla.Stat. (Supp.1978). The crimes of which the defendant was convicted occurred prior to the effective date of the cited statute and therefore, we grant this petition for certiorari and quash so much of the trial court’s order of March 20, 1981, providing for a retention of jurisdiction. State v. Williams, 397 So.2d 663 (Fla.1981); Rodriguez v. State, 380 So.2d 1123 (Fla. 2d DCA 1980).


text:
    AMERICAN REPUBLIC INSURANCE COMPANY, Appellant, v. WESTCHESTER GENERAL HOSPITAL, Appellee.
    No. 82-490.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Shutts & Bowen and William J. Gallwey, HI and Barbara E. Vicevich, Miami, for appellant.
    Bacen & Kaplan and Stephen Bacen, Hollywood, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

In an interlocutory appeal from an order denying its motion to vacate a default judgment entered against it by the trial court, American Republic Insurance Company cites its reliance upon representations by opposing counsel that no default would be sought during the pendency of settlement negotiations. American Republic contends that the trial court’s refusal to vacate the default judgment entered without notice constituted an abuse of discretion. We agree and reverse.

We hold, as we did in Rubensteln v. Richard Fidlin Corp., 346 So.2d 89, 91 (Fla. 3d DCA 1977):

Ordinarily, a plaintiff may obtain a default judgment without notice against a party who has failed to file or serve any papers in the action. Fla.R.Civ.P. 1.500(b); Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976). In the instant case, however, the defendants were misled by the plaintiff into believing that it was unnecessary to file any responsive pleadings because of ongoing settlement negotiations....
Under these circumstances, we believe it was unconscionable for the plaintiff to take advantage of the defendants’ failure to file responsive pleadings by obtaining a default judgment without notice to the defendants. See: Johnson v. Buxton, 262 So.2d 892 (Fla. 2d DCA 1972). The law is well-settled that a party is estopped from asserting legal rights to the detriment of another party when to do so would be unconscionable. See: Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA 1961).
We, therefore, hold that a plaintiff may not obtain a default judgment without notice against a defendant who has made an appearance in the case and thereafter failed to file or serve any papers in the case when the plaintiff has misled the defendant into believing that it was unnecessary to file any responsive pleadings because of ongoing settlement negotiations between the parties. Since the defendants made such an appearance and were so misled in this case, their motion to set aside the default judgment entered herein without notice should have been granted by the trial court.

Appellant’s defense appears to be meritorious and, because questions concerning whether to vacate a default should be resolved in favor of a trial on the merits, North Shore Hospital v. Barber, 143 So.2d 849 (Fla.1962), the trial court’s denial of the motion to vacate constituted a gross abuse of discretion.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    William CUNNINGHAM and Nancy Cunningham, his wife, Appellants, v. NAPLES COMMUNITY HOSPITAL, INC., Appellee.
    No. 82-541.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Adams, Ward, Hunter, Angones & Adams and Frank Angones, Miami, for appellants.
    Carey, Dwyer, Cole, Eckhart & Mason and Michael C. Spring, Miami, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See, Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975).